Thorne v. AXA Canada Inc. et al. [Indexed as: Thorne v. AXA Canada Inc.]
110 O.R. (3d) 413
2012 ONSC 2409
Ontario Superior Court of Justice,
Divisional Court,
Aston, Whitten and Corbett JJ.
April 20, 2012
Civil procedure -- Discovery -- Examination for discovery -- Plaintiff seeking to examine president and chief executive officer of corporate [page414] defendant -- Defendant bringing cross-motion to substitute former employee who had been in charge of relevant file -- Motion judge finding that president was not appropriate discovery witness and ordering that former employee be witness for examination of defendant -- Plaintiff's appeal dismissed -- Plaintiff not permitted to raise issue of former employee's eligibility as witness under rule 31.03(2)(a) as he had not raised that issue before motion judge -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 31.03(2)(a).
The self-represented plaintiff sought to examine B, the president and chief executive officer of AXA, for discovery. AXA took the position that B was not an appropriate discovery witness and that the plaintiff's request was based on an ulterior motive to cause AXA nuisance. It brought a cross- motion seeking to substitute L, a former employee who had been in charge of the relevant file, for B. The motion judge asked the plaintiff if he was ready to proceed, and he said that he was. After much of the motion had been argued, the plaintiff asked for an adjournment. The motion judge refused to grant that request. She found that B was not an appropriate discovery witness and ordered that L be the witness for the examination of AXA. The plaintiff appealed, arguing that (a) L was not an eligible witness within the meaning of rule 31.03(2) (a) of the Rules of Civil Procedure as he was not an "officer, director or employee" of AXA; and (b) the motion judge should have granted an adjournment, given AXA's late delivery of its notice of cross-motion seeking the substitution of L for B.
Held, the appeal should be dismissed.
Per Corbett J.: As the issue of whether L was an eligible discovery witness for AXA was not raised before the motion judge, the plaintiff should not be permitted to raise it on appeal.
There were good reasons not to grant the plaintiff an adjournment of the motion. The plaintiff had indicated that he was ready to proceed, and the history of the motion provided a strong basis for concluding that he was not caught by surprise by anything in AXA's materials. The motion judge recognized that the case had been delayed too long as it was and that further delay was undesirable.
Per Aston J.: The appeal should be dismissed solely on the basis that the plaintiff should not be permitted to raise the issue of L's eligibility as a discovery witness for AXA for the first time on appeal.
Per Whitten J. (dissenting): Rule 31.03(2)(a) applies only to present officers, directors and employees. As L was not a present employee of AXA, the motion judge did not have jurisdiction to grant the relief sought by the defendants.
APPEAL from the order of the motion judge.
Cases referred to Atherton v. Boycott, [1989] O.J. No. 3093, 36 C.P.C. (2d) 250 at 252, CIBC v. Cigam Entertainment Inc., [1999] O.J. No. 2011, 104 O.T.C. 134, 38 C.P.C. (4th) 122, 88 A.C.W.S. (3d) 1149 (S.C.J.); Gibson v. Bagnall (1978), 1978 1572 (ON SC), 22 O.R. (2d) 234, [1978] O.J. No. 3645, 93 D.L.R. (3d) 382, 13 C.P.C. 200 (H.C.J.); Ravenda Homes Ltd. v. 1372708 Ontario Inc., [2008] O.J. No. 4517, 171 A.C.W.S. (3d) 95, 2008 CarswellOnt 6715 (S.C.J.); Ward v. Manulife Financial, [2002] O.J. No. 446, [2002] O.T.C. 106, 15 C.P.C. (5th) 192, 112 A.C.W.S. (3d) 36 (Master) Statutes referred to Police Services Act, R.S.O. 1990, c. P.15 [page415] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1), [31.03](https://