Leave to Appeal to Divisional Court Granted Concerning Applicable Test for Examination for Discovery of Second Deponent

Fortini v. Simcoe (County), 2012 ONSC 1034 (CanLII) is an interesting case in which Madam Justice Susan E. Healey granted leave to appeal an order of Madam Justice Anne Mullins, requiring that the appellant (defendant) produce a second deponent for examination for discovery after the examination of the first deponent had been completed and while the appellant was still in the course of fulfilling undertakings given at that examination. Justice Healey felt that the decision of Mullins J. had been in error and that there was a state of conflict in the caselaw on this issue.

The motion before Mullins J. had been brought pursuant to the provisions of sub rule 31.03 (4), which has only been in force since January 1, 2010. It reads as follows:

Before making an order under clause (2) (b) or (3) (d), the court shall satisfy itself that,

(a) satisfactory answers respecting all of the issues raised cannot be obtained from only one person without undue expense and inconvenience; and

(b) examination of more than one person would likely expedite the conduct of the action.

Healey J. noted that two decisions that have interpreted this subrule have taken different approaches. In Waxman v. Waxman, 2011 ONSC 4707 (CanLII), 2011 ONSC 4707, Mr. Justice Frank Newbould found that the caselaw that predated the enactment of the new subrule did not address the tests set out in that subrule. He felt that the newly-enacted provision “broadened the circumstances in which a second representative may be ordered to be examined”.

On the other hand, Master Muir, inĀ Infinium Capital Corp. v. AB Software Corp., 2010 ONSC 812 (CanLII), 2010 ONSC 812 took a much more restrictive approach. The master felt that the older caselaw remained relevant and that “a second examination should not be ordered in the absence of ‘special circumstances’ and the test for being permitted an examination of a second representative is a very strict one”.

Justice Healey strongly agreed with Master Muir. She found that “the correctness of the order [of Mullins J.] is open to very serious debate”. Counsel for the plaintiff had also claimed to have been misled by defence counsel about the extent of the knowledge of the witness who was examined. On this motion, the plaintiffs argued that the defendant should not be able to benefit from having misled them. However, Justice Healey said that “there appears to be nothing in the wording of Rule 31.03 (4) itself or the case law that would permit such a factor to be a consideration on this motion”.

Because of her own view, that Justice Mullins had been in error, and because of the conflicting interpretations of the subrule in the jurisprudence, Justice Healey granted leave to appeal.

Thus, we should learn, in the coming months, whether the new subrule has indeed made it easier to obtain a second examination of a corporate representative.

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