Romaine j

5.23: Preparation for questioning
5.6: Form and contents of affidavit of records

Case Summary

The Plaintiff, in an Action involving a commercial financing dispute, sought an Order to include the contents of the corporate Defendant’s solicitor’s file in the Affidavit of Records, and for the individual Defendant (“Swirski-Cowndon”) to make certain inquiries of the corporation’s solicitor. The Master dismissed the Plaintiff’s Application, and the Plaintiff appealed.

The Plaintiff argued that Rule 5.6 applied and that a party must disclose all records it has under its power and control. The solicitor and Swirski-Cowndon argued that the records were privileged. Romaine J. noted that for a party to have power over a record held by a non-party, the requesting party must have a legal right to access it, and must have an ability to enforce compliance by the non-party. Justice Romaine noted that the corporate Defendant’s solicitor did not challenge Swirski-Cowndon’s right to access the records and, as a result, Swirski-Cowndon had de facto control of the contents of the file, and should list them in her Affidavit of Records.

With respect to obtaining certain information from the corporate solicitor, Justice Romaine noted that Swirski-Cowndon had not been Questioned as a corporate representative, but rather in her personal capacity. In that capacity, and given the allegations, she could be Questioned about what she did as a director or employee of the corporation, but she was not under a duty to inform herself in the same way as a corporate representative. Swirski-Cowndon’s obligations were to reasonably prepare herself for Questioning pursuant to Rule 5.23. She was not required to refresh her memory by reference to the evidence of a third party, the solicitor, who she did not control.

In conclusion, Justice Romaine ordered Swirski-Cowndon to add the contents of the solicitor’s file to her Affidavit of Records. However, the Court stated she was not obligated to make inquiries of the solicitor with respect to advice he may have given, or to incorporate the results of that inquiry as part of her Questioning.

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