L. Rapley

The defendants, a condominium corporation and an individual, brought a motion to replace the plaintiffs' chosen corporate discovery representative, Edgar Arabian, with Senthuran Krishnakulasingham (SK).

The defendants argued SK was more knowledgeable and Arabian had a conflict of interest.

The plaintiffs opposed, asserting Arabian's sufficient knowledge, absence of conflict, and SK's ineligibility as a former director whose answers would not bind the corporation.

The court dismissed the motion, finding Arabian had sufficient knowledge despite SK potentially being more knowledgeable on some issues.

The alleged conflict of interest was not substantiated as the information shared by Arabian was legitimately available to unit owners.

Crucially, SK was deemed ineligible because, as a former director, his counsel admitted his answers would not bind the corporation, rendering his examination ineffective.

The plaintiff brought a motion concerning the order of examinations for discovery in a personal injury action arising from a residential elevator failure.

The defendants argued they were entitled to examine the plaintiff first because they had served sworn affidavits of documents before the plaintiff.

The court held that the parties had, by their conduct and correspondence, agreed to a discovery plan under Rule 29.1.03 of the Rules of Civil Procedure that scheduled examinations of the defendants before the plaintiff.

Such agreement constituted “agreeing otherwise” within the meaning of Rule 31.04, superseding the default rule governing the order of discovery.

The court ordered that examinations proceed according to the discovery plan and also addressed ancillary document production issues.