Andrew Yolles was recently successful in defending a motion to examine a non-party. The action arises out of remedial work that was being performed by the defendant at the plaintiffs’ house. One of the plaintiffs allegedly tripped on a plastic containment barrier.
The plaintiffs allege that a former employee of the defendant admitted fault for the injury. The plaintiffs sought to conduct an oral examination of this former employee.
Justice Fitzpatrick outlined the test under rule 31.10 of the Rules of Civil Procedure for granting leave to examine a non-party. The court must be satisfied that:
- The information sought cannot be obtained from other persons the plaintiffs are entitled to examine or from the non-party through other means.
- It would be unfair to require the plaintiffs to have a trial without examining the non-party.
- The examination of the non-party will not cause undue delay of the trial, unreasonable expense, or unfairness to the non-party.
Justice Fitzpatrick was not satisfied that the plaintiffs satisfied the first two parts of the test.
The plaintiffs had already examined an employee of the defendant. The employee was shown photographs of the plastic barrier and was asked questions regarding the installation of the barrier.
The employee was asked whether the former employee made an admission of fault, and this was denied. No further questions of the former employee’s involvement were asked or were otherwise sought on the discovery.
Counsel for the plaintiffs contacted the former employee, but he was not willing to provide a statement or information in relation to the action.
Justice Fitzpatrick said that the plaintiffs could have asked the defendant on discovery to make inquiries of the former employee. Not doing so was fatal to the motion.
Further, Justice Fitzpatrick was not persuaded that it would be unfair for the plaintiffs to proceed to trial without being able to examine the former employee about his inspection of the barrier. At trial, the plaintiffs will have the full opportunity to show all available photographs to the former employee and ask him questions. Justice Fitzpatrick noted that witnesses are not normally examined under oath prior to trial.
As a result, the plaintiffs’ motion was dismissed.