At an examination for discovery of a corporate party, the deponent does not necessarily need to have personal knowledge of the matters in issue. The key thing is whether the deponent properly informed himself or herself.
In Boville v. The York Club, 2019 ONSC 4335, plaintiff’s counsel served a notice of examination requesting the defendant to produce “a representative” for discovery.
Defence counsel produced Duport, the current secretary/general manager of the defendant. Duport was not employed with the defendant at the time of the incident in question, but there was no question that he had authority to bind the defendant.
Plaintiff’s counsel terminated the discovery of Duport shortly after it started and brought a motion to examine the club services manager, Wright, who had some involvement relating to the incident.
Master Abrams dismissed the plaintiff’s motion. She indicated that there was no evidence to suggest that Duport did not prepare for the discovery or that he would not be able to answer questions, including by way of undertakings, if necessary. She noted that Duport spoke with Wright in preparation for the discovery.
In denying the motion, Master Abrams considered the following factors:
- Whether, without an examination of Wright, the plaintiff would be deprived of a meaningful discovery
- Whether Duport did not or would not satisfactorily inform himself
- Whether the answers given by Duport were incomplete, ambiguous or unresponsive
- Whether it would be unfair to require the plaintiff to proceed to trial without examining Wright
- Whether examining two people would likely expedite the conduct of the action
- Whether satisfactory answers respecting all issues raised could not be obtained from Duport, or Duport alone, without undue expense and inconvenience
Master Abrams held that none of these questions could be answered in the affirmative.
In addition, defence counsel would not permit the plaintiff to continue the discovery of Duport, except with leave. The plaintiff will now have to bring a motion for leave to continue the discovery of Duport.
This case demonstrates that it can be risky to terminate a discovery of a corporate party on the argument that an improper witness has been produced. It can also delay the proceeding and result in an adverse costs award.
Unless opposing counsel specifies a particular person to be examined, counsel for the party being examined may select an appropriate deponent.
As long as the deponent properly prepares for the discovery and informs himself or herself of the matters in issue, that witness will generally be held to be a proper witness. If questions cannot be answered by the witness, undertakings can be given, if appropriate.