Stillwater Capital Corporation, operating as Corporate Finance Associates v. Titanium Logistics Inc.

[Indexed as: Stillwater Capital Corp. v. Titanium Logistics Inc.]

Ontario Reports

Ontario Superior Court of Justice,

Fragomeni J.

March 23, 2016

129 O.R. (3d) 688 | 2016 ONSC 1465

Case Summary

Civil procedure — Discovery — Examination for discovery — Defendant's representative and representative's non-party wife attending examination for discovery of plaintiff's representative — Plaintiff's representative refusing to proceed with examination as he felt intimidated — Defendant not meeting its onus of establishing that attendance of non-party was necessary — Plaintiff's representative not required to establish actual prejudice assessed on objective basis — Plaintiff granted order that only one representative of defendant was permitted to be present during examination of plaintiff's representative — Defendant not permitted to have second representative present during examination for discovery of its own representative.

The plaintiff's representative, N, refused to proceed with his scheduled examination for discovery, allegedly because he felt intimidated by the presence not only of the defendant's representative D, but of D's wife, a non-party. The plaintiff moved for an order that only one representative of the defendant be permitted to be present during N's examination for discovery and an order compelling D to attend for examination for discovery on behalf of the defendant.

Held, the motion should be granted.

The onus was on the defendant to establish the necessity of having more than one representative. The defendant failed to meet its onus of establishing that the attendance of Ms. D was necessary. N was not required to establish actual prejudice assessed on an objective basis. Subjectively, he felt that the playing field was unfair. The defendant also failed to show that Ms. D's presence at D's examination for discovery was reasonably required. Given that it would be highly inappropriate for Ms. D to answer any questions, qualify any answers or assist defence counsel, her attendance created the potential for unfairness to the plaintiff's right to obtain answers from one corporate representative and have those answers bind the corporation.

Realtystar Inc. v. ReMax High Country Realty, [2001] B.C.J. No. 725, 2001 BCSC 519, 105 A.C.W.S. (3d) 41, apld

ICC International Computer Consulting & Leasing Ltd. v. ICC Internationale Computer and Consulting GmbH (1988), 1988 4637 (ON SC), 66 O.R. (2d) 187, [1988] O.J. No. 1751, 31 C.P.C. (2d) 178, 12 A.C.W.S. (3d) 200, 1988 CarswellOnt 501 (H.C.J.); Purdy v. Isardi, 2012 ONSC 5268; [page689] Redekop v. Redekop (1998), 1998 14694 (ON SC), 41 O.R. (3d) 301, [1998] O.J. No. 3435, 28 C.P.C. (4th) 109, 1998 CarswellOnt 3372, 82 A.C.W.S. (3d) 106 (Gen. Div.); Roe v. Leone (2009), 2009 26359 (ON SC), 96 O.R. (3d) 234, [2009] O.J. No. 2154, 79 C.P.C. (6th) 151, 2009 CarswellOnt 2966 (S.C.J.); York University v. Markicevic, [2012] O.J. No. 4440, 2012 ONSC 5325, 41 C.P.C. (7th) 154, 220 A.C.W.S. (3d) 701 (S.C.J.), distd

Other cases referred to

Buskell v. Bethesda Christian Assn., [2014] B.C.J. No. 1062, 2014 BCSC 950, 63 B.C.L.R. (5th) 425, 68 C.P.C. (7th) 348, 241 A.C.W.S. (3d) 72; F. (K.) (Litigation guardian of) v. White, [2000] O.J. No. 922, [2000] O.T.C. 182, 2000 CarswellOnt 856, 95 A.C.W.S. (3d) 882 (S.C.J.)

MOTION for an order that only one representative of the defendant be permitted to be present during the plaintiff's examination for discovery and for other relief.

Sahar Cadili, for plaintiff.

John N. Birch, for defendant.

[1] Endorsement of FRAGOMENI J.: — The plaintiff and moving party seeks the following relief:

(a) an order that only one representative of the defendant, Titanium Logistics Inc., be permitted to be present during the examination of the plaintiff;

(b) an order compelling Ted Daniel to attend at any examination for discovery on behalf of the defendant;

(c) costs of the motion; and

(d) costs of the aborted examination for discovery of Douglas Nix, on behalf of the plaintiff on October 26, 2015.

Grounds for Motion

[2] The plaintiff sets out the following grounds in support of its motion:

the examination for discovery of Douglas Nix (hereinafter "Nix"), on behalf of the plaintiff, was scheduled for October 26, 2015, pursuant to a notice of examination and Nix is the president of the plaintiff corporation;

the examination for discovery of Ted Daniel (hereinafter "Daniel"), on behalf of the defendant, was scheduled for October 27, 2015. Daniel is the president of the defendant corporation and is the individual with the most knowledge of the matters in the proceeding; [page690]

Nix attended at his examination for discovery at Network Reporting & Mediation located at 77 City Centre Drive and was ready to be examined for discovery;

in the examination room, there were counsel present from the defendant's office and there were also two defendant representatives: Daniel and his wife, Marilyn Daniel (hereinafter "Ms. Daniel");

Nix was shocked to see that two representatives were going to be present during his examination for discovery;

in addition to finding it shocking that two defendant representatives were present, Nix found it intimidating to have the two representatives present during his examination for discovery and felt that it would be unfair for him to proceed with the examination while feeling under pressure and intimidated;

accordingly, counsel for the plaintiff requested that only one defendant representative be present during Nix's examination; however, counsel for the defendant insisted that both be present;

the request that only one representative be present was repeated several times; nevertheless, counsel for the defendant refused to have one of the representatives leave the room and both remained;

-- as a result, the examination of Nix did not proceed;

counsel for the defendant indicated that he would not be producing his client for the previously scheduled examination for discovery;

counsel for the plaintiff advised the defendant's counsel that, should Daniel fail to attend at his examination, they would be obtaining a certificate of non-attendance;

on October 27, 2015, Daniel failed to attend at his examination for discovery as required by the notice of examination, dated October 16, 2015; and

-- accordingly, a certificate of non-attendance was obtained.

Position of the Defendant

[3] The defendant submits the following in response to the plaintiff's grounds: [page691]

the allegations of intimidation and unfairness lack an evidentiary foundation that warrants excluding a second defendant representative from being present;

this is a purely commercial dispute and there is no personal or sensitive subject matter that warrants exclusion;

neither of the two defendant representatives acted in any intimidating way towards Nix; and

the two defendant representatives of Titanium are Daniel, president and CEO, and Ms. Daniel, vice president; both had extensive dealings with Nix and are intimately knowledgeable about the events in issue.

Governing Legal Principles

[4] Both parties filed case law to support their respective positions. Titanium takes the position that there is no legal authority supporting Stillwater's position. Stillwater asserts that its position was reasonable and in accordance with long-standing practices.

[5] I will now review the cases filed by the parties.

[6] The plaintiff relies on two cases as set out in its book of authorities. In Realtystar Inc. v. ReMax High Country Realty, [2001] B.C.J. No. 725, 2001 BCSC 519 ("Realtystar Inc."), the court stated the following, at paras. 8 and 12:

In my view the master was in error in placing the onus on the defendants to show that it would create an injustice for both Mr. Meehan and Ms. Jensen to be present. The onus should have been on the plaintiff to demonstrate the necessity of having more than one representative present. The only reason advanced here for both to be present at the plaintiff's examination of Ms. Brash is that its counsel takes instructions from both Mr. Meehan and Ms. Jensen.

The appeal of the defendants is allowed. The plaintiff company will be permitted to have one representative only at the examination for discovery of Ms. Brash, but it will have the choice of which director that will be. The defendants are entitled to their costs of the appeal in the cause on Scale 3.

[7] In Buskell v. Bethesda Christian Assn., [2014] B.C.J. 1062, 2014 BCSC 950, Master I.W. Caldwell noted the following, in para. 10:

While an interesting proposition, it seems to me that such arrangement would put corporate litigants in a preferred position to that of flesh and blood litigants. When a natural person is being examined for discovery, there are very reasonable and well-established limits on their ability to communicate with their counsel. To accede to the defendant's position here would be to award corporate litigants the status of "litigants plus" [page692] by allowing them an advantage not available to natural litigants. I agree with the view of Melnick J. in Realtystar, that absent the defendants establishing the need for more than one representative they are limited to the one representative which they propose.

[8] The defendant submits that the two British Columbia cases filed by the plaintiff do not represent the law in Ontario. In support of that position, the defendant relies on the following cases.

[9] In York University v. Markicevic, [2012] O.J. No. 4440, 2012 ONSC 5325 (S.C.J.) ("York University"), Justice Brown dealt with the right of a party to be present during an out-of-court examination in a civil case. At para. 8, Justice Brown set out the following:

The law regarding the right of a party to be present during an out-of-court examination in a civil case was described in detail in K.F. (Litigation guardian of) v. White and Roe v. Leone. Let me summarize the applicable principles:

(i) There is an inherent right for parties to an action to be present during the cross-examination or examination for discovery of other parties to, or witnesses in, an action;

(ii) The court has the discretion to exclude parties from attending such cross-examinations or examinations for discovery;

(iii) However, the court does not establish classes of cases which eliminate a party's inherent right to be present at an examination -- "blanket exclusions" do not form part of our procedural law;

(iv) The person seeking to exclude a party from an examination bears the onus, on a balance of probabilities, of showing cause to justify such an exclusion;

(v) Cause depends on the circumstances of the case. Courts have defined cause as a realistic and substantial cause, circumstances that would cause prejudice to the party to be examined, or circumstances that make exclusion necessary to secure the ends of justice; and,

(vi) Demonstrated intimidation by one party towards the other is a justifiable reason to exclude, however a court should guard against assuming intimidation from a set of circumstances. Intimidation must be proven.

[10] In Roe v. Leone (2009), 2009 26359 (ON SC), 96 O.R. (3d) 234, [2009] O.J. No. 2154, 2009 CarswellOnt 2966 (S.C.J.), Nolan J. also dealt with the issue of who may be present at an examination for discovery, at para. 10:

In considering the evidence available to support an order excluding one party from the cross-examination or discovery of another party, Chapnik J. reviewed the case law. She found that there was an inherent right for parties to an action to be present during the cross-examination or discovery of other parties to an action in that the basis on which that right [page693] should be curtailed must be realistic and substantial and that would cause prejudice to the party to be examined. She also agreed that demonstrated intimidation by one party towards another is a justifiable reason to exclude. Relying on the transcript of the criminal trial, the plaintiff's victim impact statement and the fact that she had installed an alarm system because of her fear of the defendant, Chapnik J. found that there was a strong possibility of intimidation and, therefore, granted the order excluding the defendant from the examination of all three of the plaintiffs, two of them being under the age of 18.

[11] In ICC International Computer Consulting & Leasing Ltd. v. ICC Internationale Computer & Consulting GmbH (1988), 1988 4637 (ON SC), 66 O.R. (2d) 187, [1988] O.J. No. 1751, 1988 CarswellOnt 501 (H.C.J.), Anderson J. dealt with this issue as it related to corporations as follows, at para. 6:

On the basis of his reasons, my reading of the cases referred to him and cited in argument before me, and my consideration of the matter, I venture to enumerate the following propositions:

(1) A party to an action has an inherent right to be present during the examination of any other party for discovery.

(2) This right extends to a corporation, which is entitled to be present by its agent.

(3) There is a discretion in the Court and its judicial officers to exclude a party where such exclusion is necessary to secure the ends of justice.

(4) A party seeking to exclude another from examination must show cause for such exclusion.

(5) What will constitute cause is a matter to be decided on the facts in each individual case.

It is in the light of these propositions that I shall dispose of the motion.

[12] In Redekop v. Redekop (1998), 1998 14694 (ON SC), 41 O.R. (3d) 301, [1998] O.J. No. 3435, 1998 CarswellOnt 3372 (Gen. Div.), Quinn J. reviewed the evidentiary requirement to establish intimidation that could arise at a discovery and noted the following, at para. 13:

It is not enough for the respondent to say that he is, or will be, intimidated if the applicant is present during his discovery; there must be some evidence from which this court can objectively arrive at that conclusion. I find that evidence to be lacking. The letter of April 16, 1998 does not support a finding of intimidation. Similarly, even if a letter to a third party can serve as a reasonable basis for a finding of intimidation, I do not see how the letter of June 8, 1998 can be viewed in that fashion. It is not enough that the respondent feels or fears intimidation. That is not the test. There must be an objective basis for that feeling or fear; otherwise, the sensibilities of the respondent, no matter how heightened or unfounded, would operate to defeat the substantive right of the applicant to be present during the examination for discovery of the respondent. [page694]

[13] The final case I wish to review that was filed by the defendant is Purdy v. Isardi, 2012 ONSC 5268 ("Purdy"). Justice Rady allowed a claims adjuster to attend the discovery to observe the plaintiff, hear her testimony and assess her case in terms of settlement possibilities and defence strategies. At para. 9, she sets out the general principles relevant to the presence of non-parties at examinations for discovery:

The Responding party stresses that State Farm is a non-party and generally speaking, non parties are not permitted to attend an examination for discovery, subject to certain exceptions. In S. & M Brands Inc. c. Paul, 2003 FC 1035 (F.C.) the court permitted a non-party to attend a discovery. Blais J. cited Ormiston v. Matrix Financial Corp., 2002 SKQB 257, [2002] S.J. No. 383 (Sask. Q.B.) which summarized the general principles applicable to the presence of non-parties at examinations for discovery as follows:

1. Only the parties and their respective counsel, or in the case of the corporation, its agent, may attend an examination for discovery unless the parties have consented to the presence of a non-party, or the examining officer has granted the non-party leave to be present. In this jurisdiction, the local registrar or deputy registrar would normally be the examining officer, and failing them, a judge of this Court.

2. The examining officer and/or judge may exercise his or her discretion by granting leave for a non-party to assist at an examination in any of the following circumstances, which are not intended to constitute an exclusive list or to limit the discretion of aforementioned persons:

(a) where the level of expert knowledge, technical, scientific or otherwise, relevant to the issues in an action is beyond the level of skill and knowledge normally expected of legal counsel and therefore legal counsel may be unable to conduct a proper examination without the assistance of an expert, specialist or technician. For example, the calculation of damages in a personal injury action is a matter that counsel should be able to address and therefore the presence of an accountant normally would not be permitted at an examination. The qualification of the expert assistant need not meet the thresholds applicable to experts testifying at trial.

(b) a non-party who is not a professional expert concerning a particular complex issue before the court but who has the knowledge or abilities that will make the discovery process run smoothly and expeditiously, usually will be allowed to attend an examination for discovery in the capacity of an expert assistant. The ability to manage documents in an action involving a substantial number of documents, or familiarity with financial records, may be sufficient to warrant such person being given leave to assist at an examination;

(c) where a party requires the assistance of a non-party in special circumstances; for example, an aged mother might be accompanied by her son or daughter.

3. The burden of establishing that a specific non-party should be allowed to attend at an examination for discovery rests with the party seeking the non-party's assistance. In most circumstances an affidavit setting out the applicant's needs, counsel's concerns and how the non-party can assist will be essential.

4. Where the applying party has met the requirements set forth in paragraphs 2 and 3, the burden of proving prejudice or other ground for excluding the non-party rests with the party opposing his or her inclusion from the examination for discovery process.

[14] At paras. 13-15, Justice Rady makes the following findings and conclusions:

I do not consider it necessary to decide if the insurer is in fact a non-party. Assuming it is, the issue is whether in this case, the adjuster should be permitted to attend the plaintiff's discovery. He does not fall into any of the categories identified by Klebnc J. In Ormiston but those categories are not exclusive nor do they fetter the discretion of the judicial officer hearing the request.

The adjuster has deposed to the reason why he wishes to attend. His reasons are rational and not unreasonable given the nature of the plaintiff's alleged injuries. A lawyer's report or a copy of the transcript cannot capture subtleties, such as non-verbal communication, that personal observation affords. On the other hand, there is an absence of compelling evidence that this plaintiff will be upset, feel harassed or intimidated if he were present. There is only a vague concern expressed, second hand, about the potential for increased stress.

In the circumstances, I would permit the adjuster to attend the plaintiff's discovery. He is to be an observer only and is not to participate in the questioning by counsel.

[15] Nix states the following in his affidavit sworn January 5, 2016 in support of the motion, at para. 6:

6. I was not comfortable seeing both Daniel and Ms. Daniel being present in the room for examination for discovery. In addition, Ms. Daniel sat with a large binder in front of her and asked for a "post it" note pad. It felt as though she would be participating in the examination process. I felt intimidated having both Mr. and Ms. Daniel present and I felt that if we were to proceed with the examination for discovery, I would feel intimidated and under pressure throughout the entire examination and that being subject to such intimidation during the examination was not fair to me, and so I advised my counsel, Mr. Upenieks.

[16] At the examination for discovery of Nix on October 26, 2015, the following exchange sets out the context within which this issue arose:

MR. UPENIEKS: I asked you for authority to have two representatives and I indicated two representatives aren't permitted at court and likewise they're not permitted at examination. Are you allowing me to examine both of them for discovery?

MR. BIRCH: No.

MR. UPENIEKS: Just one representative.

MR. BIRCH: No, because the -- [page696]

MR. UPENIEKS: Then it's just one representative today so choose one.

MR. BIRCH: I'm going to start asking my questions with Mr. and Mrs. Daniel in the room --

MR. UPENIEKS: Well, then you leave us no alternative but to maintain our position, and if you intend to do that without indicating any authority to me by way of Rules or cases, I can tell you that in my over 30 years of experience, I've never had anybody show up with more than one representative per party and without checking that first or seeking consent and insisting that multiple representatives be present, so I'm not agreeing to that, and if you intend to ask questions with two representatives here, you leave me no alternative.

MR. BIRCH: Well, what's the potential prejudice, Mr. Upenieks? What are you worried about?

MR. UPENIEKS: You're not entitled to have them here. It's not a question or worrying or not worrying. It's a question of you not being entitled and breaching long-standing practices and rules. There's no rule that you've been able to indicate to me that permits you to have both of them here.

MR. BIRCH: I'm going to ask --

MR. UPENIEKS: And if you're saying you're not agreeing to let me examine both of them, then we have to be consistent in our position.

MR. BIRCH: Well, except that the Rules specifically deal with how representatives of a corporate party can be examined. That is specifically provided for in the Rules.

MR. UPENIEKS: But if you consented now, then I can examine two representatives, I'd be okay to go if I can examine both of them tomorrow.

MR. BIRCH: No.

MR. UPENIEKS: Well, then you leave us no alternative. We'll see you tomorrow then at the examination --

MR. BIRCH: So just so that we're clear, Mr. Upenieks, you're walking out of the examination; is that right?

MR. UPENIEKS: What's happening is both Mr. and Mrs. Daniels are not moving, they're staying here, so if you're trying to have them both present despite my strong statements that they're not both entitled to be here, you leave me no alternative.

MR. BIRCH: If you refuse to proceed today, then I'm not producing Mr. Daniel tomorrow and this will all become the subject of a motion or we will basically seek an order direction Mr. Nix to re-attend with two people present, two representatives of my client present -- I just want to make that clear.

[17] Mr. Upenieks states the following in his affidavit sworn February 18, 2016 in support of the motion, at para. 6:

6. In response to paragraphs 43 and 45 of the Affidavit of Caitlin Russell, I did not feel at the time of the examination that it was necessary nor appropriate to disclose that my client felt intimidated as I felt that disclosing that at the time would have resulted in a full argument about why my [page697] client felt intimidated and caused further discomfort to him. Further, I did not think it was even necessary to offer an explanation because there was nothing in the Rules of Civil Procedure that allowed for two representatives to be present at any examination. In addition, in my 32 years of practice, I had not seen two representatives being present during an examination and I was hopeful that the representatives from Titanium would act reasonably and one of them would leave upon seeing that the issue may result in the examination not proceeding, necessitating a re-attendance or a motion.

[18] Mr. Upenieks also deposes that from his review of the facts, the pleadings and the productions in this proceeding, Ms. Daniel's involvement was minimal compared to that of Mr. Daniel.

Analysis and Conclusion

[19] In the York University decision, Justice Brown's discussion relates to parties in a civil case. He sets out that there is an inherent right for parties to an action to be present during the examination of other parties in an action. He also confirms the principle that the person seeking to exclude a party bears the onus on a balance of probabilities of showing cause to justify such an exclusion. Justice Brown's discussion relating to intimidation is within that context. The case of F. (K.) (Litigation guardian of) v. White, [2000] O.J. No. 922, 2000 CarswellOnt 856 (S.C.J.), filed by the defendant, demonstrates a situation where it is appropriate to order that a defendant not be present during the examination for discovery for the plaintiff. At paras. 40 to 42, the court sets out the following context:

In [Crowe], the Court ordered that the defendant be excluded from attending the discovery of the plaintiff. The action involved childhood sexual abuse, for which the defendant was charged and convicted. The Court acknowledged the prima facie right of a defendant to be present during discovery, but held that given the facts of the case, it was readily understandable why the plaintiff would not want her assailant present. In addition, the Court noted that there was less reason for the defendant to be present since he had heard the plaintiff's testimony at the preliminary inquiry.

This case involves virtually the same circumstances that faced the court in [Crowe] and I adopt that Court's reasons for exclusion. In addition, while it may be open to question whether a matrimonial case and the accompanying emotions and stress provide a sufficiently real and substantial cause to limit a party's right to be present, a case involving sexual assault -- for which the party has been criminally convicted is categorically different. The type of stress, emotion, intimidation and trauma a victim facing the offender, provides in my opinion, sufficiently exceptional circumstances to order exclusion.

Moreover, sufficient evidence has been presented in the materials filed to satisfy me that in this case, the defendant ought not to be present during each of the plaintiffs' examination for discovery on the question of damages. The plaintiff's victim impact statement indicates she has suffered [page698] significant physical, emotional and psychological trauma as a result of the sexual assault, and still feels unsafe: Motion Record Vol. II, Tab 11, Exhibit 31, at 687. She has installed an alarm system because of this fear: Motion Record, Vol II, Tab 11, Exhibit 31, at 689. The information from the record of the assault indicates a strong possibility of intimidation. Under these circumstances, I consider it appropriate to exercise my discretion and order that the defendant not be present during the examinations for discovery of the plaintiffs.

[20] The factual nature of the motion before me is distinguishable from the cases filed by the defendant. Ms. Daniel is not a party to the litigation. Daniel was produced at the examination for discovery to answer questions on behalf of the defendant corporation.

[21] The evidentiary record before me does not substantiate the need to have Ms. Daniel present. Further, and in accordance with the principles set out in Realtystar Inc., the onus is on the defendant to establish the necessity of having more than one representative.

[22] Although Nix did not provide details or particulars of what the intimidation was, it would appear from the evidentiary record that the examination did not proceed and as a result no particulars would be forthcoming. Nix clearly set out subjective grounds for asserting an unfairness, in his mind, in the situation that presented itself.

[23] I am not persuaded that Mr. Nix is required to establish actual prejudice assessed on an objective basis. The point remains that subjectively he felt that the playing field was unfair.

[24] The decision in Purdy is distinguishable on its facts. Justice Rady reiterates that the burden of establishing that a specific non-party should be allowed to attend rests with the party seeking the non-party's attendance. The burden of showing prejudice rests with the party who opposes the non-party's attendance at the examination.

[25] Balancing all of these factors, I am not satisfied that the defendant has established Ms. Daniel's attendance at the examination of Nix was necessary. To permit her attendance could, in my view, lead to situations that are unmanageable and problematic. For example, if two representatives of a corporation are permitted to attend, why not allow three or more, who all may have had some dealings with the subject matter in question? The approach and resolution of this issue has to be a principled one.

[26] Mr. Daniel is the representative of the defendant produced to be examined. In this case, Mr. Daniel, as president, is intimately involved with the subject matter of the action. The [page699] only issue is whether a second representative of the defendant can be present during Mr. Daniel's examination.

[27] In her affidavit sworn February 16, 2016, Caitlin Russell, an associate with the law firm representing Titanium, sets out the reasons why it is necessary for Ms. Daniel to be present at the examination of Nix:

-- The primary parties involved in the negotiation and performance of the Agreement were Nix and Ted and Marilyn Daniel.

-- The law firm receives instructions equally from both Ted Daniel and Marilyn Daniel.

-- Ted and Marilyn as founders of Titanium work closely as a team with different rules and expertise.

-- Ted and Marilyn Daniel attended two key meetings with Nix.

-- Ted and Marilyn are both intimately knowledgeable about the events giving rise to this action.

-- Counsel require the knowledge possessed by both Ted and Marilyn to be able to properly draft questions and prepare for the discoveries.

[28] There is nothing to suggest that Mr. Daniel is not the appropriate representative of the corporation to be examined. The corporation's representative must make reasonable inquiries and be informed for his examination on behalf of the corporation and there is nothing on the evidentiary record before me to suggest he had not done so.

[29] The defendant will be present through its representative Daniel. I accept that the law requires the defendant to show why it is reasonably required to have a second representative at the same examination.

[30] The reasons set out do not show any reasonable reason why Ms. Daniel needs to be physically present during the examination. Given that it would be highly inappropriate for Ms. Daniel to answer any questions, qualify any answers or assist defence counsel, her attendance creates the potential for issues to arise and for unfairness to the plaintiff's rights to obtain answers from one corporate representative and have those answers bind the corporation.

[31] I am not persuaded that Ms. Daniel's attendance is necessary or reasonably required for a fair and proper examination for discovery of the plaintiff. The defendant has not met the onus.

Order to Issue

(1) That only one representative of the defendant, Titanium Logistics Inc., is permitted to be present during the examination of the plaintiff; [page700]

(2) that Mr. Ted Daniel shall attend at the examination for discovery on behalf of the defendant; and

(3) the parties shall file written submissions on costs of this motion and costs of the aborted examination for discovery of Douglas Nix on October 26, 2015 within 20 days.

Motion granted.

End of Document