COURT OF APPEAL FOR ONTARIO
RE: ART FLEMING & SONS ENT. LTD. (Plaintiff) v. W.D. LAFLAMME LIMITED and THE GUARANTEE COMPANY OF NORTH AMERICA (Defendants/Respondents) v. LA MUNICIPALITE REGIONALE DE COMTE DE PONTIAC (Third Party/Respondent) AND IN THE MATTER OF GARY WISEMAN (Applicant/Appellant)
BEFORE: GOUDGE, BORINS AND SHARPE JJ.A.
COUNSEL: William Simpson, Q.C.
for the appellant Gary Wiseman
Heather L. Acton
for the respondent W.D. LaFlamme Limited
Robert B. Sheppard Q.C.
for the respondent La Municipalite Regionale De Comte De Pontiac
HEARD: December 14, 2000
On appeal from order of Justice Roydon Kealey dated May 11, 2000.
E N D O R S E M E N T
1The appellant volunteered to serve as Pontiac’s representative on LaFlamme’s examination for discovery of Pontiac, presumably because he wanted to accommodate the parties. However, during the course of the examination circumstances changed and the appellant wished to be relieved of any alleged obligation to re-attend and complete the examination.
2Given that the appellant is not an officer, director or employee of Pontiac, Rule 31.03(2) does not apply. In the circumstances of this case, we do not view his prior attendance as a waiver of his right not to attend.
3Therefore, we would allow the appeal with costs, set aside the order of Kealey J. and substitute an order dismissing the motion with costs.
(signed) “S.T. Goudge J.A.”
(signed) “S. Borins J.A.”
(signed) “R.J. Sharpe J.A.”