T-5984-78
Claude J. Green, Professional Aircraft Services
Inc. and National Aviation Consultants Ltd.
(Plaintiffs)
v.
The Queen, R. C. Mason and D. T. Berg
(Defendants)
Trial Division, Mahoney J.—Toronto, November
19; Ottawa, November 23, 1979.
Practice — Discovery — Examination for discovery
Application pursuant to Rule 465 for order directing that
Mason (defendant against whom action was dismissed) be
permitted to attend and assist counsel in the examination for
discovery of an officer of one of the plaintiff corporations —
Opposition to application is based on anticipation that officer
will be questioned on matters outside of his knowledge and on
impropriety of attendance at discovery of an expert who will
likely be a witness at the trial — Application allowed —
Federal Court Rule 465.
Tridici v. M.E.P.C. Canadian Properties Ltd. (1979) 22
O.R. (2d) 319, referred to.
APPLICATION.
COUNSEL:
D. P. Olsen for plaintiffs.
B. Segal for defendants.
SOLICITORS:
Brock & Brock, Kitchener, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for order ren
dered in English by
MAHONEY J.: This action was dismissed as
against the defendants Mason and Berg. The sole
remaining defendant, Her Majesty the Queen,
seeks an order under Rule 465 directing that
Mason be permitted to attend and assist counsel in
the examination for discovery of R. Craven, an
officer of the plaintiff, National Aviation Consult
ants Ltd., (hereinafter "National"). The terms of
a second order sought by Her Majesty were agreed
to.
The action arises out of the inspection and
overhaul of an aircraft owned by National. The
overhaul was conducted by the plaintiff, Profes
sional Aircraft Services Inc., (hereinafter "Profes-
sional"). The plaintiff Green is Professional's
president.
Mason attended and assisted counsel on Green's
examination for discovery. There was no objection.
Counsel proposes to pursue a line of technical
questions with Craven similar to that pursued with
Green. Craven is not personally competent to
answer those questions. He is merely the president
of a company that owns and operates an airplane.
He knows nothing of its inner workings. The oppo
sition to Mason's attendance is dictated solely by
Craven's technical ignorance and by the anticipa
tion that he will be required to inform himself and
provide answers to technical questions. There is no
indication at this point that the proposed line of
technical questioning is not entirely proper.
The scope of an examination for discovery is
defined by Rule 465. Paragraphs (5) and (16) are
not in play.
Rule 465... .
(15) Upon examination for discovery otherwise than under
paragraph (5), the individual being questioned shall answer any
question as to any fact within the knowledge or means of
knowledge of the party being examined for discovery that may
prove or tend to prove or disprove or tend to disprove any
unadmitted allegation of fact in any pleading filed by the party
being examined for discovery or the examining party.
(17) In order to comply with paragraph (15), the individual
being questioned may be required to inform himself and for
that purpose the examination may be adjourned if necessary.
(18) The examiner, unless he is a prothonotary or a judge,
has no authority to determine any question arising under
paragraphs (15) or (16). In any case other than one where a
judge is the examiner, if the party examining is of the view that
the individual being questioned has omitted to answer, or has
answered insufficiently, the party examining may apply by
motion or informally to the Court for an order requiring him to
answer, or to answer further. Where a judge is the examiner,
his ruling on any question shall be deemed to be an order of the
Court.
It seems to me that, in taking its position now,
National is anticipating an argument which might
well succeed in opposition to an application
brought by the defendant under Rule 465(18), if
the technical information sought is, indeed, outside
its knowledge or means of knowledge.
National also questioned the propriety of the
attendance at the discovery of an expert assistant
who may, and likely will, be a witness at the trial.
No rationale for the impropriety of such attend
ance was suggested; however, the authority for the
proposition that it might be improper is found in
Tridici v. M.E.P.C. Canadian Properties Ltd.', a
decision of the High Court of Ontario on appeal
from the order of a County Court Judge. The
examiner had ruled that the expert could attend
and the County Court Judge had "interfered with
the discretion only in so far as he ruled that the
expert was not to be a witness at [the] trial" [page
319]. In dismissing the appeal Madame Justice
Van Camp did not deal with that point and rea
sons for the decision of the County Court Judge
have not, so far as I can ascertain, been reported.
The reasons for such a restriction must have
been peculiar to the circumstances of the particu
lar case. There is an obvious risk in permitting a
witness to become too identified with the advocacy
of a case. His credibility may, unnecessarily, be
jeopardized. That is not a basis for complaint by
an opposing party. I see no reason to impose such a
restriction in this case.
The order will go permitting the defendant's
counsel to be accompanied and assisted by Mason
at Craven's examination for discovery on behalf of
National. The defendant is entitled to costs of a
single motion.
' (1979) 22 O.R. (2d) 319.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.