The insurer sought an order to videotape the examination of three expert witnesses to preserve their evidence regarding the cause of an infant's injuries, as the limitation period for the infant to sue would not expire until 2021.
The motion judge granted the order relying on the court's inherent jurisdiction and the Rules of Civil Procedure.
The Court of Appeal allowed the insured's appeal, holding that Rule 36.01 does not authorize the preservation of evidence before an action is commenced, and section 146 of the Courts of Justice Act cannot be used to create such jurisdiction where the Rules intentionally restrict it to existing proceedings.
