citation: "Wyse v. Tangerine Bank, 2020 ONSC 4" parties: "Laura Wyse v. Tangerine Bank and The Bank of Nova Scotia" party_moving: "Laura Wyse" party_responding: "Tangerine Bank and The Bank of Nova Scotia" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion" date_judgement: "2020-01-31" date_heard: "2019-10-08" applicant:

• "Laura Wyse" applicant_counsel:
• "Alan J. Davis" respondent:
• "Tangerine Bank"
• "The Bank of Nova Scotia" respondent_counsel:
• "Anne K. Gallop" judge:
• "D. E. Short" summary: > The plaintiff, Laura Wyse, brought a motion concerning discovery rights and obligations in her employment termination claim against Tangerine Bank and The Bank of Nova Scotia. The motion sought orders for Tangerine Bank to provide a sworn Affidavit of Documents from one of its own employees, officers, or directors, and to provide a Tangerine employee, officer, or director for examinations for discovery. The defendants argued that an employee of the parent company, BNS, or a legal assistant who conducted searches, would suffice, citing Rules of Civil Procedure and case law on liberal interpretation. The court granted the plaintiff's motion, emphasizing the clear terms of the Rules requiring a party's own representative for affidavits and examinations, and upholding the agreed-upon discovery plan. interesting_citations_summary: > The decision clarifies the interpretation of Rules 30.03 and 31.03 of the Rules of Civil Procedure regarding affidavits of documents and examinations for discovery for corporate parties, particularly in the context of subsidiary and parent corporations. It reinforces that a named corporate defendant must provide its own employee, officer, or director to swear an affidavit of documents and for examination, rather than relying on a representative from a parent or affiliated entity, even if that entity provides legal services or has more direct knowledge. The court distinguishes previous cases that allowed for a broader interpretation of "officer" or "employee" for discovery purposes, noting they were in different contexts (e.g., plaintiff seeking to examine a knowledgeable non-employee, or an employee with direct incident knowledge). The ruling underscores the importance of adhering to the clear terms of the Rules and the agreed-upon discovery plan. final_judgement: > The plaintiff's motion was granted. The court ordered Tangerine Bank to provide a sworn Affidavit of Documents from one of its own employees, officers, or directors, and to provide a Tangerine employee, officer, or director for examinations for discovery. Costs were awarded to the moving party on a partial indemnity basis. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2020 decision_number: 4 file_number: "CV-18-607685" source: "https://www.canlii.org/en/on/onsc/doc/2020/2020onsc4/2020onsc4.html" cited_cases: legislation:
  • title: "Canadian Human Rights Act" url: "https://laws-lois.justice.gc.ca/eng/acts/h-6/"
  • title: "Canada Labour Code" url: "https://laws-lois.justice.gc.ca/eng/acts/l-2/"
  • title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law:
  • title: "TELUS Communications Company v. Sharp et al., 2010 ONSC 2878" url: "https://www.canlii.org/en/on/onsc/doc/2010/2010onsc2878/2010onsc2878.html"
  • title: "HRD Kitchen Services (Toronto) Ltd. v. Prime Food Equipment Services Ltd., 2017 ONSC 559" url: "https://www.minicounsel.ca/scj/2017/559"
  • title: "Bell v. Klein, 1954 CanLII 242 (BC CA)" url: "https://www.canlii.org/en/bc/bcca/doc/1954/1954canlii242/1954canlii242.html"
  • title: "Atherton v. Boycott, 1989 CarswellOnt 407" url: "https://www.canlii.org/en/on/onsc/doc/1989/1989carswellont407/1989carswellont407.html" keywords:
• Discovery plan
• Affidavit of Documents
• Examinations for discovery
• Corporate defendants
• Rules of Civil Procedure
• Employment law
• Subsidiary corporation
• Parent corporation areas_of_law:
• Civil Procedure
• Employment Law

Court File and Parties

COURT FILE NO.: CV-18-607685 MOTION HEARD: 2019-10-08 REASONS RELEASED: 2020-01-31 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

LAURA WYSE Plaintiff

• and -

TANGERINE BANK and THE BANK OF NOVA SCOTIA Defendants

BEFORE: MASTER D. E. SHORT

COUNSEL: Alan J. Davis, for the Plaintiff (Moving Party) adavis@davisbarristers.com Anne K. Gallop, for the Defendants anne.gallop@nortonrosefulbright.com

REASONS RELEASED: January 31, 2020

Reasons for Decision

I. Overview

1These proceedings relate to claims advanced by the plaintiff, Laura Wyse, for the recovery of damages, in relation to her employment with the defendants, or either of them as, “Legal Counsel”, which commenced on or about April 16, 2012 and which was terminated effective April 13, 2018.

2The plaintiff claims recovery of damages on account of breach of contract and, in particular, termination of her employment without reasonable advance notice, plus additional damages and other relief that includes damages for breach of obligations owed to the plaintiff under the Canadian Human Rights Act and Canada Labour Code.

3In particular, the plaintiff asserts that she was terminated, at a point in time when she was pregnant and experiencing medical issues and residual disabilities as a result of her pregnancy.

4This decision relates to the second half of a motion brought by the plaintiff regarding the discovery rights and obligations of the parties.

II. Action to Date

5This action was commenced on October 26, 2018. The defendants, Tangerine Bank (“Tangerine”) and The Bank of Nova Scotia (“BNS”), served their combined Statement of Defence on February 1, 2019.

6Plaintiff’s counsel delivered a Demand for Particulars with respect to allegations contained in the Statement of Defence on February 14, 2019 and Defendants' counsel provided a Response to the Demand for Particulars later that month.

7In an effort to reach an early resolution of this case, the parties agreed to undertake the Mandatory Mediation of the claims forming the subject matter of these proceedings before examinations for discovery, with an express agreement to exchange documentary productions prior to the ADR session.

8In that regard, plaintiff’s counsel proposed that documentary productions be exchanged on or before June 7, 2019. In particular he identified a list of documents he regarded as relevant to the issues forming the subject matter of these proceedings, which he expected would be included in the defendants' documentary productions.

9In early June Mr. Davis provided defendants’ counsel with copies of the plaintiff's Affidavit of Documents sworn May 29, 2019 and a draft Discovery Plan prepared by Mr. Davis which were delivered with the June 11, 2019

10In his June 11, 2019 letter, Mr. Davis requested that Ms. Gallop immediately review and approve the draft Discovery Plan and, or, contact Mr. Davis forthwith should she have any questions or concerns relating to the terms of the draft Discovery Plan. Mr. Davis further reiterated his expectation that he would be receiving affidavits of documents and Schedule "A" productions from the defendants no later than June 14, 2019.

11On June 19, 2019, he received by courier correspondence from Ms. Gallop dated, June 19, 2019 together with the Affidavit of Documents of Susy Guadron, on behalf of the defendant The Bank of Nova Scotia, sworn June 19, 2019 and copies of the Schedule "A" documents referred to therein. In his reply of June 20, 2019 Mr. Davis inter alia requested that Ms. Gallop provide a signed copy of the Discovery Plan prepared by Mr. Davis for the purpose of putting the said Discovery Plan into effect forthwith.

12Regrettably, while the preemptive Mandatory Mediation session took place on June 25, that the mediation did not give rise to settlement of any of the issues in dispute.

13The next day Mr. Davis sent to Ms. Gallop, a request for her to advise if the draft Discovery Plan (sent June 11, 2019) met with her approval and further referencing the need to revise the terms of the said draft Discovery Plan in order to extend the date for production of documents and to reference dates for examinations for discovery. The following day counsel for BNS confirmed her view that, “the draft Discovery Plan needs to be amended”. Apparently, Ms. Gallop further referenced in her email that, “due to vacation schedules, we will not be in a position to provide a fulsome response to the proposed Discovery Plan until the week of July 8, but I can confirm that it is unlikely that discoveries will occur in August… ”.

14In response to that indication, Mr Davis’s office booked a motion for relief which included an Order to establish an appropriate Discovery Plan. Which ultimately came before my colleague, Master Abrams on August 14, 2019.

15The affidavit filed in support of the plaintiff’s motion continues:

“18. …. The Notice of Motion included an attached, "Schedule "A"" which was a further revised draft Discovery Plan. The covering letter from Mr. Davis dated, July 10, 2019 included Mr. Davis' request that Ms. Gallop review the terms of the draft Discovery Plan (attached to the Notice of Motion) with her clients and, in so doing, advise as to the extent to which her clients were agreeable to such terms with a view to resolving outstanding issues on a consent basis and, in so doing, obviating the necessity of a motion hearing. Mr. Davis indicated that the Notice of Motion would be filed with the court for the purpose of securing the August 14, 2019 return date.”

III. August 14 Order

16Master Abrams’ Order reads in part:

THIS MOTION made by the plaintiff to put into place an appropriate Discovery Plan was heard this day at Toronto.

ON READING the plaintiff's Motion Record containing Notice of Motion dated, July 10, 2019 with attached proposed draft Discovery Plan and the supporting Affidavit of Maria Galati sworn July 29, 2019, and on further reading the Motion Record of the Defendants /Responding Parties containing the Affidavit of Shirley Wong sworn August 8, 2019, and on further reading the Statement of Claim and Statement of Defence, and on consent of the lawyers for the parties,

1. THIS COURT ORDERS that discovery of documents and examinations for discovery in the within proceedings be conducted in accordance with the Discovery Plan attached and marked as Schedule "A".

17Master Abrams adjourned the balance of the motion to the date I heard the present motion, indicating the establishment of that date was “to further address, if necessary, issues, including without limitation, costs of the motion, (including costs of August 14, 2019 attendance).

IV. Discovery Plan Rules

18During the first year following my appointment as a Case Management Master, the Province of Ontario enacted what were colloquially known as the "Osborne Amendments", which took effect on January 1, 2010. Those rules made it mandatory for the Court to abide by the key principle of "proportionality" in making decisions under the new Rules.

19In particular, those rules incorporated the new Rule 29.1, which for the first time introduced the concept of a "discovery plan" for civil litigation conducted in the province.

20That rule provided that where a party to an action intends to obtain evidence by way of an examination for discovery, the parties to the action “shall agree” to a discovery plan in accordance with the rule.

21Originally, the rule simply mandated that the discovery plan was to be “agreed to before the earlier of,

(a) 60 days after the close of pleadings or such longer period as the parties may agree to; and

(b) attempting to obtain the evidence."

22Rule 29.1.03 (3) directs that the discovery plan shall be in writing, and shall include, inter alia,

(a) the intended scope of documentary discovery under rule 30.02 taking into account relevance, costs and the importance and complexity the issues in the particular action.

23Regrettably, the unintended consequence of this new element resulted in delays in getting relatively straightforward cases to the discovery stage, where, prior to the amendments to the Rules to require a Plan, any missing materials could either be sought during an examination for discovery or perhaps resolved on a refusals motion.

24When the rule was enacted in 2010, there was no provision permitting the court to impose a discovery plan where the parties could not agree. In TELUS Communications Company v. Sharp et al., 2010 ONSC 2878, 102 O.R. (3d) 93; 2010 ONSC 2878, I held that while the rule did not provide specific guidance with respect to the imposing of a plan where the parties could not agree on its contents.

25Ultimately in that case I concluded at paragraph 16 of my decision that the Rules were to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”. I therefore implemented what I thought was the appropriate result in terms of rule 1.04 (2) which provides for matters that were not provided for in these rules, the practice shall be determined by analogy to them. I therefore concluded, based upon the foregoing provisions, I had no doubt that I have the authority to impose a discovery plan upon a party that is not willing to “agree” to a Plan.

26Some years later, the Rules of Civil Procedure were amended effective as of 2019, to conform to (and, in effect, ratify) my 2010 ruling. The amendments to the rule are of significance and contain specific provisions which are founded upon the intervention of the Court including:

Non-Application Of Rule

29.1.01 This Rule does not apply to parties who are subject to a discovery plan established by the court.

27The rule continues to deal with the consequences of a failure to agree to plan:

29.1.05 (1) On any motion under Rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan in accordance with this Rule.

28However, now this alternative method for arriving at a Plan has been created:

Court may Impose Discovery Plan

(2) If the parties fail to agree to a discovery plan in accordance with this Rule, the court may order that examinations for discovery be conducted in accordance with a discovery plan established by the court, which may set a schedule for examinations and impose such limits on the right of discovery as are just

29It is against that regulatory background, I turn to the issues raised by the plaintiff’s counsel before me and the position of the Defendants.

V. Current Issues

30The present corporate structure has given rise to two areas of concern with respect the Plaintiff’ seeking to obtain an order:

(a) An Order for a Sworn Affidavit of Documents from an employee, officer, director of Tangerine Bank.

(b) An Order that Tangerine Bank provide a Tangerine employee, officer or director for examinations for discovery.

31The counsel acting for both defendants, takes the position that an employee or officer of the parent company BNS should be sufficient and that the plaintiff is not entitled to seek to insist that employees now working for the Plaintiff’s former employer provide the evidence the plaintiff intends to rely upon.

VI. Banks’ Position

(a) An Order for a Sworn Affidavit of Documents from an employee, officer, director of Tangerine Bank.

32In this regard it is submitted by the Defendants that:

The Plaintiff raised an issue in the Supplementary Motion Record that the Tangerine Bank Affidavit of Documents ("Tangerine AOD") has to be sworn by an employee, officer or director of Tangerine Bank. In particular, the Plaintiff alleged that the affidavit of Ms. Susy Guadron sworn October 3, 2019, on behalf of the Defendant, Tangerine Bank, does not comply with the requirements in the Rules … based on the fact that Ms. Guadron is not an employee, director or officer of Tangerine Bank.

33The Defendant's position is that Ms. Susy Guadron is the appropriate individual to swear Tangerine's AOD and the Plaintiff's allegation is misguided for three reasons:

• First, nothing in the Rules, including Rule 30.03 which sets out the requirements of affidavits of documents, provides that it must be sworn by an employee, officer or director of the defendant corporation. As such, the Tangerine AOD is compliant with the Rules.

34Conversely, I note that in my view the purpose of the rule is to have a legal agent of the party swear to the validity of the litigant’s productions. If there were no such individuals available, I would have to seek “the next best entity”. However, based on my brief analysis on this issue that follows, and the applicable rules, I am satisfied the Plaintiff is entitled to an Affidavit of Documents sworn by an individual falling into the categories requested.

35I note that Rule 30.03 is subject to the provisions of companion sections:

30.01 (1) In rules 30.02 to 30.11,…

(b) a document shall be deemed to be in a party’s power if that party is entitled to obtain the original document or a copy of it and the party seeking it is not so entitled.

36With regard to related entities Rule 30.01 provides:

(2) In subrule 30.02 (4),

(a) a corporation is a subsidiary of another corporation where it is controlled directly or indirectly by the other corporation; and

(b) a corporation is affiliated with another corporation where,

(i) one corporation is the subsidiary of the other,

(ii) both corporations are subsidiaries of the same corporation, or

(iii) both corporations are controlled directly or indirectly by the same person or persons.

37Rule 30.02 provides in part:

SCOPE OF DOCUMENTARY DISCOVERY

Disclosure

30.02 (1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.

Production for Inspection

(2) Every document relevant to any matter in issue in an action that is in the possession, control or power of a party to the action shall be produced for inspection if requested, as provided in rules 30.03 to 30.10, unless privilege is claimed in respect of the document.

38Of particular relevance is this provision:

Subsidiary and Affiliated Corporations and Corporations Controlled by Party

(4) The court may order a party to disclose all relevant documents in the possession, control or power of the party’s subsidiary or affiliated corporation or of a corporation controlled directly or indirectly by the party and to produce for inspection all such documents that are not privileged.

39Thus, the Rule permits the defendant to seek production from a parent entity. What the Rule does not state is that this means of obtaining documents must be used, where the defendant is a separate entity and a named defendant in the action.

40The Rule continues by addressing provisions relating to the Affidavit of Documents establishes that there is a duty on each party to serve such an affidavit. Specifically, it is provided that:

30.03 (1) A party to an action shall serve on every other party an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.

(3) The affidavit shall also contain a statement that the party has never had in the party’s possession, control or power any document relevant to any matter in issue in the action other than those listed in the affidavit.

41The second argument put forward by the defendants was that, “the Plaintiff's objection is overly technical, and in contradiction to Rules 1.04(1) and 1.04(1.1)”, which specifies that the Rules should be liberally construed to secure the just, most expeditious and least expensive determination of issues on its merits.

42The Rules were carefully drafted in this area. I am not satisfied that a modification of the defined certification to be given by a party, as required by the Rules, would constitute a “just” determination on the merits.

43I found the defendants’ next argument somewhat troubling. It was asserted:

“Specifically, it is not in the best interests of the parties to dwell on technicalities. In the words of Master Macleod in HRD Kitchen Services (Toronto) Ltd. v. Prime Food Equipment Services Ltd., 2017 ONSC 559, it was emphasized that "[a] party reviewing an affidavit of documents is expected not to make unnecessary technical objections while a party producing an affidavit is expected to respond seriously and in good faith to concerns about the adequacy of documentary production and identification.” [HRD Kitchen Services (Toronto) Ltd. v. Prime Food Equipment Services Ltd., 2017 ONSC 559, 276 ACWS (3d) 797 at para. 32.]

44I do not regard requiring compliance with the clear terms of this rule, as an unnecessarily “technical” objection.

45The next argument put to me was based upon the fact that The Bank of Nova Scotia provides legal services to its wholly-owned subsidiary, Tangerine Bank. Apparently, Tangerine Bank no longer has a legal group, and moreover, there is nobody currently employed at Tangerine who has knowledge giving rise to the events alleged in Ms. Wyse's action. It is therefore proposed that a Senior Legal Assistant at Scotiabank, was responsible for doing the searches in accordance with the parties' Discovery Plan. It was argued that “As such, it is appropriate to have [that individual] swear the Tangerine AOD since the person swearing the affidavit is supposed to be the person conducting the search. In the circumstances, [she] was indeed the individual who conducted the search.”

46I do not agree that there is any meaningful obligation to examine for discovery the individual who signed the affidavit, particularly where she is not even employed by the subsidiary co-defendant.

(b) An Order that Tangerine Bank provide a Tangerine employee, officer or director for examinations for discovery.

47The BNS factum asserts:

The Plaintiff is entitled to select an appropriate representative from Tangerine Bank to examine for discovery. The Plaintiff has been requesting that Tangerine Bank produce an employee, director or officer for examinations for discovery, but failed to name a Tangerine Bank representative to discover as of yet.

48It is the Defendants' position that Tangerine Bank has the right to put forward someone of its choosing, even if the individual is not an employee, director or officer of Tangerine Bank; and it has suggested that the appropriate individual is the Senior Vice-President and General Deputy Counsel at Scotiabank and oversees a Scotiabank legal team that provides services to Tangerine Bank. In fact, that individual signed the letter that effected the Plaintiff's termination.

49The applicable rule addresses:

WHO MAY EXAMINE AND BE EXAMINED

Generally

31.03 (1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8).

On Behalf of Corporation

(2) Where a corporation may be examined for discovery,

(a) the examining party may examine any officer, director or employee on behalf of the corporation, but the court on motion of the corporation before the examination may order the examining party to examine another officer, director or employee; and

(b) the examining party may examine more than one officer, director or employee only with the consent of the parties or the leave of the court.

(4) Before making an order under clause (2) (b) or (3) (b), the court shall satisfy itself that,

(a) satisfactory answers respecting all of the issues raised cannot be obtained from only one person without undue expense and inconvenience; and

(b) examination of more than one person would likely expedite the conduct of the action.

50On this issue the Defendants' position is based upon these arguments:

First, the Rules do not require that Tangerine Bank put forward an employee, officer or director as its representative for discovery. Instead, Rule 31.03(2) provides where a corporation may be examined for discovery, the examining party may examine any officer, director or employee on behalf of the corporation. Importantly, it does not provide that the representative must be an officer, director or employee on behalf of the corporation. [my emphasis]

Second, the determination of an officer on behalf of the corporation has been interpreted liberally to include individuals not directly employed by the corporation. Traditionally, an officer of a corporation is a person responsible for the management, direction, control or supervision of the corporation, but the term is not limited to those who are the named officers of a corporation.

51Their factum points, for instance, to Bell v. Klein, 1954 CanLII 242 (BC CA), [1955] 1 DLR 37, 13 WWR (NS) 193 at para. 9. In that case it was held that it was not required that a direct employee be examined for discovery but an “officer" (interpreted loosely) could also be examined by the plaintiff. The case involved an action in which a corporation was sued for fraud by the company's auditors. It was held that an independent firm of accountants, were "officers" and could be examined by the plaintiff. Accordingly, a person could be regarded as an officer or servant if he or she was the one person connected with the company best informed in the matters which may define or narrow the issues between the parties.

52I regard this decision as not being particularly helpful as in that case it was the plaintiff seeking to examine a knowledgeable individual who was the auditor of the defendant corporation. Here the plaintiff is not seeking to examine a non-employee but rather an officer, director or employee of the defendant bank.

53Similarly, the banks submit that “as established in Atherton v. Boycott, 1989 CarswellOnt 407”, 36 CPC (2D) 250; 1989 CarswellOnt 407 (at para. 4) for the purposes of determining whether an individual is an employee within the meaning of Rule 31.03(2), it is not necessary to strictly adhere to the common law principles establishing an employer-employee relationship. The factum rightly observes:

In particular, it was established that a sensible interpretation of the employer-employee relationship depends on the circumstances of each case, bearing in mind that the object is determining the truth.

54In that case the Police officer who was driving a vehicle owned by the City was ordered to be the appropriate witness on the discovery of the defendant city. On appeal, that decision was upheld, the brief reasons observed that the proposed officer

“… was driving the city’s vehicle when it was involved in the accident. As such, he has direct knowledge of the incident, superior to that of some other city employee or clerk. He had sufficient connection with the city to be encompassed within the extended meaning of “employee” as referred to by Judge Cusinato.”

55Lastly, it is submitted that “the reality is that there is no one from Tangerine Bank that has any direct relevant knowledge of any of the events leading up to the Plaintiff's termination of employment.” That may well ultimately prove to be the case.

56The plaintiff may have a futile examination, but counsel has been told that and is, in my view, entitled to examine a witness who may turn out to be of little or no utility to the plaintiff’s case. That determination is not one to be made at this stage.

57Ultimately, in reaching my decision I am relying as well upon the Discovery Plan that was consented to by both parties and approved by my colleague. That document concludes with this certification by counsel:

The signatories below hereby acknowledge and agree that he or she has prepared and agreed to this Plan to achieve the most expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the proceeding.

58That document contained in Section D, relating to Oral Examinations, these provisions regarding the witnesses to be examined and the duration of those examinations:

Name of Witness

-Laura Wyse (Plaintiff)

-Katy Waugh on behalf of the defendant, The Bank of Nova Scotia

-A representative on behalf of the defendant, Tangerine Bank (to be ascertained after delivery of their Affidavit of Documents and Schedule "A" productions)

Expected Length of Examination

(without prejudice to the parties' right to bring a motion to extend the length of discovery, and without prejudice to the parties' right to oppose such motion)

1 Day (i.e. up to 7 hours)

(total of 7 hours combined for Katy Waugh on behalf of the defendant, The Bank of Nova Scotia and a representative of the defendant Tangerine Bank (to be determined)

59It seems to me to be implicit in these terms that Ms. Waugh was not expected to be the witness examined with respect to the position of the employer Tangerine Bank.

VII. Disposition

60The plaintiff’s motion is granted. I am there ruling that there shall issue:

(a) An Order for a Sworn Affidavit of Documents from an employee, officer, director of Tangerine Bank.

(b) An Order that Tangerine Bank provide a Tangerine employee, officer or director for examinations for discovery.

61In the result the plaintiffs have been successful on this motion which addressed, what was clearly, an extraordinary area. I am obliged to counsel for their assistance and patience.

62An order shall issue reflecting the above determinations.

63I see no reason why costs should follow the event and, subject to any offers made, I am awarding the moving party her costs of the motion, on a partial indemnity basis. If the parties are unable to agree upon a form of order or an appropriate costs award, I may be contacted in order that an appropriate protocol can be established for submissions by the parties.