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Motion to examine non-party solicitor dismissed as premature for failing to pursue other avenues first.
The defendants brought a motion to examine the plaintiff's former solicitor for discovery and for production of documents from her former law firm to support a Limitations Act defence.
The defendants sought to prove the plaintiff knew of his entitlement under his grandfather's will before February 28, 2016.
The court dismissed the motion as premature, finding that the defendants had not first made a diligent effort to obtain the targeted information from TD Canada Trust, the entity that administered the trust funds, as required by Rule 31.10(2) of the Rules of Civil Procedure.
Documents referenced in pleadings must be produced for inspection under Rule 30.04(2).
The defendants brought a motion under Rule 30.04 of the Rules of Civil Procedure seeking production of documents referenced in the plaintiffs’ statement of claim.
The plaintiffs opposed production, arguing the defendants had not shown the documents were necessary to plead a defence.
The court reviewed the history and purpose of Rule 30.04(2) and held that documents specifically referred to in pleadings are incorporated into those pleadings and must be produced for inspection upon request.
The court rejected the argument that necessity for pleading is a precondition to inspection and emphasized the Rules’ objective of full disclosure and avoidance of trial by ambush.
The motion was granted and the defendants’ time to deliver a statement of defence was extended to ten days after delivery of the requested documents.
