SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 09-44276
DATE HEARD: December 18, 2012
RE: Peter Du Manoir and Michael Du Manoir and DuManoir Motors Incorporated
BEFORE: MASTER PIERRE E. ROGER
COUNSEL:
Michael Rankin, for the Plaintiff (Responding Party)
email: michael.rankin@mcmillan.ca
Ph: (613) 232-7171 Fax: (613) 231-3191
Andrew J.F. Lenz, for the Defendant, DuManoir Motors Incorporated (Moving Parties)
email: alenz@perlaw.ca
Ph: (613) 566-2842 Fax: (613) 238-8775
John Melia, for the Defendant, Michael Du Manoir – did not attend motion
Email: jmelia@blg.com
Ph: (613) 237-5160 Fax: (613) 230-8842
E N D O R S E M E N T
This motion, brought by the Defendant DuManoir Motors Incorporated, seeks an order requiring the Plaintiff to re-attend for examination for discovery for purposes of completing his examination for discovery and following up on undertakings.
For reasons that follow, the motion is dismissed on terms.
The action involves a shareholders’ dispute between two brothers. The Plaintiff has a minority interest in a family business and seeks relief including a winding up.
A party conducting a discovery should generally be entitled to complete the oral discovery once undertakings and questions improperly refused have been answered.[^1] However, such follow up discovery is not an absolute right and the court will consider relevant factors as outlined in Senechal and whatever other factors are relevant to that analysis, considering the circumstances of each case, to arrive at a just result. Considering amendments to the Rules of Civil Procedure, these factors also include proportionality and the factors outlined at rule 1.04.
I have carefully reviewed the submissions, affidavits and factums and note the following:
The Plaintiff was examined for discovery on December 7, 2010. This was an efficient day long discovery with very few objections (only two).
The Plaintiff answered most undertakings by August 24, 2011.
The Plaintiff brought a motion for summary judgment in 2011, which was heard in February 2012.
Fall 2011, the Defendant brought a motion to compel the Plaintiff to answer outstanding undertakings and objections, returnable November 15, 2011.
The Plaintiff responded and provided additional information and that motion was resolved on consent. The Plaintiff was not required to re-attend at an oral examination as part of the resolution of this motion to compel undertakings and objections.
As part of the motion for summary judgment, the parties exchanged affidavits and cross-examination of the Plaintiff on the motion for summary judgment was conducted on January 10, 2012.
The Defendants did not request any additional oral examination for discovery in responding to the motion for summary judgement. The Defendants could have requested that they be allowed to complete whatever discovery is now alleged to be incomplete prior to the return of the motion for summary judgment or prior to cross-examination.
This case is not one where a party refused to answer proper questions frustrating or interfering with a proper oral examination. Few objections were made.
The answers provided by the Plaintiff are not cursory. Paragraph 17 of the moving party’s affidavit and the submissions made when this motion was argued raise three (3) undertakings and two (2) answered refusals where the Defendants would have follow up questions. I note, as well, that the answers provided to these are detailed and thorough. Further, that some of the information might to some extent be with the Defendants which is a distinction from cases where all of the information sought in follow up questions would clearly be only within the knowledge of the party being examined.
Considering the above, it is not clear that additional oral examination for discovery of the Plaintiff would serve a useful purpose. The purpose of discovery in this case can be achieved otherwise than by ordering additional oral discovery. Although additional oral discovery would likely take a few hours to half a day, they would likely delay the scheduled pre-trial and might delay the trial date. An interest of justice to consider and to balance with the interests of the Defendant to complete oral discovery is to ensure that our system of civil justice is not too complex, too expensive and takes too long or, if you wish, that our system allows at some reasonable point for timely justice. I admit that a small concern of this court is a worry that the Defendants might wish to slightly delay the scheduling of a trial date. I say this as the discovery were conducted in 2010, a motion on undertaking was settled in November 2011 with no request for any further attendance of the Plaintiff to be examined, a motion for summary judgement was defended without any such request for added oral discovery and the request made for follow up questions at this late stage are either somewhat minor or/and would appear to have been possibly useful for the motion for summary judgment yet additional oral discovery was not then sought.
Consequently, considering these factors, I am convinced that full and fair discovery in the circumstances of this case does not require the Plaintiff re-attending to complete oral discovery. However, I am satisfied that some of the answers to undertakings (undertakings 2, 3 and 8) and refusals (there were only two) give rise to follow up questions and will allow this to be done in writing but strictly limited to follow up questions to these as these were the areas of concern raised in the materials and argued at this motion.
In conclusion, this motion is dismissed, however, by 18:00 on January 9, 2013, the Defendants may submit to the Plaintiff follow up questions in writing arising from answers to undertakings 2, 3 and 8 and, from answers to the two refusals and these shall be answered by the Plaintiff by 12:00 noon on January 14, 2013. The scheduled pre-trial is not adjourned and will proceed unless otherwise agreed on consent of all parties and otherwise ordered by this court.
An endorsement will follow dealing with the issue of costs of this motion.
Master Pierre E. Roger
Date: January 04, 2013
[^1]: Senechal v. Muskoka (District Municipality), 2005 11575 (ON SC), 2005 CarswellOnt 1414 at paras. 5-6.