5.2: When something is relevant and material
5.25: Appropriate questions and objections
5.30: Undertakings

Case Summary

Toronto-Dominion Bank (“TD Bank”) brought an Application to compel the Defendant, John Collins (“Collins”), to provide answers to Undertakings arising from his Questioning. TD Bank also sought an Order declaring that the subject of the Undertakings was relevant and material and allowing TD Bank to question Collin on these matters. Gates J. first noted that the wording of Rule 5.2(1) was identical to the wording of former Rule 186.1 and case authority interpreting the former Rule was applicable to interpreting the new Rule. Under the former Rule, oral Examinations for Discovery were confined to eliciting primary facts which were directly at issue, or facts from which the existence of primary facts might be directly inferred. The question was to be determined by reference to the issues raised by the Pleadings. Gates J. cited Weatherill (Estate of) v Weatherill, 2003 ABQB 69 [Weatherill], which set out that relevance must be determined with respect to the issues defined in the Pleadings. The Pleadings are also relevant to the issue of materiality. Gates J. quoted from Weatherill:

In deciding whether a particular document is material, one must take a very pragmatic view, viewing the situation from the perspective of the party who must prove the fact in question. At an interlocutory state of proceedings, the Court should not measure counsels’ proposed line of argument too finely; if counsel can disclose a rational strategy in which the disputed document plays a material part, that should be sufficient.

In this case, Collins acknowledged during Questioning that he was mistaken as to the then current value of the property when he swore the Affidavits of Value. Gates J. held that Collins opened the door to further Questioning relative to other Affidavits of Value sworn in relation to properties that were subject to earlier foreclosure proceedings. Based on this, Gates J. accepted TD Bank’s argument that Questioning relative to earlier transactions could significantly help determine an issue raised in the Pleadings. While the Court was prepared to direct that Collins respond to questions related to earlier foreclosure proceedings, it was not prepared to go so far as to allow TD Bank to question Collins on all 56 foreclosure-type Actions against Collins, or the corporation he solely owned. Gates J. stated that permitting such a broad range of Questioning would serve little purpose other than to unnecessarily delay the proceedings. It was left up to TD Bank to identify a reasonable number for the purposes of Questioning. The Court also directed that TD Bank obtain any of the relevant documents from the earlier foreclosure-type Actions that it wished to present during the continued Questioning, as TD Bank was not to use the Order from this Application to indirectly require Collins to expand his document production obligations.

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