The plaintiff brought a motion under Rule 39.02(2) of the Rules of Civil Procedure seeking leave to examine opposing litigation counsel under Rule 39.03 in connection with a forthcoming motion for particulars.
The motion arose after cross‑examination revealed that the affiant, a lawyer at the plaintiff’s firm, lacked personal knowledge of key factual assertions in her affidavit and had relied on information prepared by counsel.
Applying the factors articulated in First Capital Realty Inc. v. Centrecorp Management Services Ltd., the court held the proposed examination was relevant, arose from matters uncovered during cross‑examination, would not cause non‑compensable prejudice, and could not reasonably have been sought earlier.
The court further held that proportionality and a contextual approach supported allowing the examination where the relevant information was uniquely within counsel’s knowledge.
Leave to examine the lawyer was therefore granted, with costs reserved.
