Professional Documents
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Tab 2 - Palms of Pasadena V Royal and SunAlliance 2008 CanLII 3226
Tab 2 - Palms of Pasadena V Royal and SunAlliance 2008 CanLII 3226
ONTARIO
B E T W E E N: )
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PALMS OF PASADENA HOSPITAL )
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Plaintiff/Responding Party )
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ROYAL & SUNALLIANCE ) Kevin D. Toyne, for the Moving
INSURANCE COMPANY OF ) Party, for Royal & SunAlliance
CANADA, GLOBAL EXCEL ) Insurance Company of Canada
MANAGEMENT INC., KATHARINA )
SHLOEGL and SHIRLEY WARD )
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Defendants/Moving Party )
)
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JOHN INGLE, INGLE ) John F. Spratley for Ronald Kenneth
INTERNATIONAL INC. and RONALD ) Henry, counsel for the Responding
KENNETH HENRY ) Parties, John Ingle and Ronald
) Kenneth Henry
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Third Parties/Responding Parties )
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A N D B E T W E E N: )
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EDINBURG REGIONAL MEDICAL )
CENTER )
)
Plaintiff )
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)
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KENNETH HENRY )
Defendants )
REASONS FOR RULING (RULE 39.03(1))
The Application
[1] The defendants move, in the two above styled actions, to quash
“RSA”). The summonses were served by counsel for the third parties in order to
third parties wish to examine Mr. White in order to obtain evidence to use on the
motion brought by the third parties for particulars of the defendants’ third party
“Subject to subrule 39.02(2), a person may be examined as a witness before the hearing
of a pending motion or application for the purpose of having a transcript of his or her
evidence available for use at the hearing.
(2) A witness examined under subrule (1) may be cross-examined by the examining
party and any other party and may then be re-examined by the examining party on
matters raised by other parties, and the re-examination may take the form of cross-
examination. “
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[3] Third party counsel argues that he needs to examine White in order to
third party which is relevant to the main action brought by the plaintiffs against
the defendants. Third party counsel takes the position that this evidence is
essential to enable the third party to plead to the defendant’s third party claim.
[4] Defense counsel argues that the third party has sufficient information to
plead to the claim. His position is that the motion, rather than being an essential
adjunct to the third party’s particulars motion, is nothing more than a “fishing
expedition” to obtain evidence in the nature of discovery that the defendants will
[5] Counsel for the third party argues that unless the third parties are provided
with the particulars of the actual evidence, including whether or not such
evidence exists, (that the defendants will be relying on to support their claim
against the third parties of breach of confidentiality), that the third party will be
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[6] I am somewhat sympathetic to the argument of counsel for the third party.
Frank and open disclosure at all stages of civil proceedings is highly desirable.
Nevertheless, I am mindful that the Rules of Civil Procedure, in the context of the
present motion, are designed to ensure fairness to both sides, and to prevent
either side from getting an unfair advantage by resort to the rules themselves.
part of the third parties to plead to the defendants’ claim against them. To allow
the summonses to stand and the examination to proceed would undermine the
defendants’ legitimate right to defend the main action and pursue the third party
[8] The third parties are entitled to obtain the very evidence they seek on this
motion in the course of documentary or oral discovery in due course. They will
suffer no prejudice, because they will be entitled to get the evidence they are
make the order which the third party requests me to make, I would be ordering
what amounts to virtual discovery of the defendants’ third party claim in the
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course of pleadings, and before requiring the third party to plead. This concern is
response to the defendants’ claim made against them, will simply be pleading
either a general denial, or a denial with some degree of specificity in support of it,
as set out in other pleadings which they have provided, and which appear in the
Result
[9] I must, therefore, grant the order requested by the defendants and strike
Reasons
[10] At the outset, I adopt the statement of issues that arise in a motion of this
sort as set out by Justice Speigel in Bearden v. Lee (2005), 13 C.P.C. (6th) 364:
set up by Justice Snowie, counsel for the third parties ought to have applied for
Resources) (2002), 211 D.L.R. (4th) 741, the Ontario Court of Appeal set out the
conducted on issues relevant to the pending application and that the proposed
[12] The third parties have not met that onus in the present case. Mr. White’s
position with the defendant company does nothing more than provide a
speculative basis for the third party argument that he has, or ought to have,
agreement by the third party. The third party is in the best position to determine
regulations are such that it is probable that Mr. White has access to some
itself nothing more than speculation. It certainly does not provide an evidentiary
would be relevant to the particulars motion, because that motion hinges on the
particulars to enable the third parties to plead to the claim alleged against them.
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[13] The motion material is replete with examples showing that the third party
is well aware of what is being alleged against them, as well as the basis for the
out in discovery, but the third parties are simply not entitled to disclosure of that
evidence at the present time, provided they have sufficient particulars of the
“The motion for particulars cannot be dealt with as an evidentiary matter but must stand
or fall solely on a review of the pleadings itself … Accordingly, the examination sought, in
my view would really amount to a premature discovery and fishing expedition that can
have as its primary purpose little relevance to the determination of the motion for
particulars, restricted as mentioned above to an examination of the pleading alone.”
[15] In applying the Ontario Court of Appeal decision in Canada Metal Co. Ltd.
“…the examination would be an abuse if “while ostensibly for the purpose of eliciting
relevant evidence, is in fact being used for an ulterior or improper purpose”. The court
also determined that abuse could be found in the manner in which the process was used.
The examination should not be used “to conduct a general discovery” (Payne v. Ontario
Human Rights Commission, [2000] O.J. No. 2987 (C.A.)), nor should it be used “so as to
authorize what amounts to a ‘fishing expedition’.” (Elfe Juvenile Products Inc. v. Bern,
[1994] O.J. No. 2840 (Gen. Div.).”
Likewise, I am of the view that it would be an abuse of process if the examination of the
witness, in the guise of eliciting evidence relevant to the determination of the refusals
motion, would be for the purpose of, or have the result of, obtaining the very evidence
that a party refused to answer at discovery, since the master has not yet determined
whether it is a proper question for the party to answer.”
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[16] There, Master Dash found that the service of the summons to witness
the summons to witness for these purposes was an abuse of the court process.
[17] It is quite clear from the affidavit of Mr. Ingle sworn November 29, 2007,
that he is really seeking evidence that the defendants intend to rely on a trial, and
which can properly be obtained through the normal discovery process. His
his counsel, support this proposition. For example, in his cross-examination, Mr.
Ingle states:
“The one relevant question is, does any record exist of confidential information that was
disclosed to John Ingle? and the records include tape recording, e-mails or claims files.
That’s the question.”
[18] As defense counsel points out, the summons to witness requires White to
produce, “All original documents including any sound recording, videotape, film,
photograph, chart, graph, map, plan survey, book of account and information
which are relevant to the particulars of any matters in issue in this proceeding
and a list of all documents over which you claim privilege.” It is clear from this,
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and other examples in the motion material, that third party counsel is not seeking
upon which the claim being pleaded is founded. An attempt to elicit this type of
[21] In addition to the foregoing, however, while the case law is conflicting, I
also find, based in part on Mr. Ingle’s affidavit of November 29th, and his cross-
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able to plead fully and meaningfully to the third party claim being made against
him by the defendants in the present case. That threshold finding obviates the
need for the examination being sought. This threshold finding assists in
disposition of the application before me, but is not intended to bind the hand of
Conclusion
[23] For the foregoing reasons, therefore, the motion to quash the
summonses is granted.
Costs
[24] The issue of costs will be dealt with in writing. Counsel for the
whatever costs are being claimed within fifteen (15) days. Counsel for the
responding party will respond in writing within fifteen (15) days thereafter.
Counsel for the successful moving party will have a further five (5) days to reply.
Once I have all the written submissions, I will delivery my ruling with respect to
___________________________
B E T W E E N:
Plaintiff/Responding Party
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Defendants/Moving Party
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INGLE et al
Belleghem J.