COURT FILE NOS.

: 540/07A and 541/07A

DATE: 2008/01/31

ONTARIO

2008 CanLII 3226 (ON SC)

SUPERIOR COURT OF JUSTICE

B E T W E E N: )
)
PALMS OF PASADENA HOSPITAL )
)
)
)
Plaintiff/Responding Party )
)
- and - )
)
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 )
)
Defendants/Moving Party )
)
)
- and - )
)
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
)
Third Parties/Responding Parties )
)
A N D B E T W E E N: )
)
EDINBURG REGIONAL MEDICAL )
CENTER )
)
Plaintiff )
 -2-

)
- and - )
)

2008 CanLII 3226 (ON SC)

ROYAL & SUNALLIANCE )
INSURANCE COMPANY OF )
CANADA, GLOBAL EXCEL )
MANAGEMENT INC. and COLLEEN )
MCARTHUR )
)
Defendants )
)
A N D THIRD PARTY CLAIM ) Court File No. 541/07A 3P
B E T W E E N: )
)
ROYAL & SUNALLIANCE )
INSURANCE COMPANY OF )
CANADA )
)
Plaintiff/Moving Party )
)
)
- and - )
)
JOHN INGLE, INGLE )
INTERNATIONAL INC. and RONALD )
KENNETH HENRY )
)
Defendants/Respondents )
)
AND THIRD PARTY CLAIM ) Court File No. 541/07AA 3P
B E T W E E N: )
)
GLOBAL EXCEL MANAGEMENT )
INC. )
Plaintiff )
)
- and - )
)
JOHN INGLE, INGLE ) HEARD: Motions heard at Guelph
INTERNATIONAL INC. and RONALD ) on January 29, 2008
 -3-

KENNETH HENRY )
Defendants )
REASONS FOR RULING (RULE 39.03(1))

2008 CanLII 3226 (ON SC)

The Honourable Justice Belleghem

The Application

[1] The defendants move, in the two above styled actions, to quash

summonses to a witness, Chris White. White is an employee of the defendant

Royal and SunAlliance Insurance Company of Canada (hereinafter referred to as

“RSA”). The summonses were served by counsel for the third parties in order to

obtain Mr. White’s attendance on an examination pursuant to Rule 39.03(1). The

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

claim against them.

The Applicable Rule

[2] Rule 39.03(1) reads:

“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. “
 -4-

2008 CanLII 3226 (ON SC)

The Arguments

[3] Third party counsel argues that he needs to examine White in order to

obtain evidence of the existence or non-existence of evidence supporting the

defendants’ allegation against the third party of improper use of confidential

information contrary to a confidentiality agreement between the defendant and

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

rely on at trial to prove the third party claim.

[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
 -5-

prejudiced in pursuing its motion for particulars to obtain evidence to support a

motion to strike the third party claim in its entirety.

2008 CanLII 3226 (ON SC)

Ratio

[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.

[7] The motion material before me demonstrates sufficient knowledge on the

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

action under the procedural protection of the Rules.

[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

seeking. In addition, pleading amendments are a matter of right. If I were to

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
 -6-

course of pleadings, and before requiring the third party to plead. This concern is

compounded by unequivocal evidence in the motion material before me that the

2008 CanLII 3226 (ON SC)

third parties, rather than pleading with any degree of particularity themselves in

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

motion material before me.

Result

[9] I must, therefore, grant the order requested by the defendants and strike

the summonses. My reasons follow.

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:

“(a) Is there an evidentiary basis for the proposed examination?

(b) If there is, would it be an abuse of process to allow the examination?

(c) Is the Summons too wide?”

(Given my ruling, it is not necessary to consider whether, in light of the schedule

set up by Justice Snowie, counsel for the third parties ought to have applied for

leave to serve the summonses.)

 -7-

[11] In Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural

Resources) (2002), 211 D.L.R. (4th) 741, the Ontario Court of Appeal set out the

2008 CanLII 3226 (ON SC)

test, and held that the onus was on the party seeking to conduct the examination

“to show on a reasonable evidentiary basis that the examination would be

conducted on issues relevant to the pending application and that the proposed

witness was in a position to offer relevant evidence.”

[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,

knowledge of evidence pertaining to an alleged breach of the confidentiality

agreement by the third party. The third party is in the best position to determine

whether or not such evidence exists. A vague suggestion that insurance

regulations are such that it is probable that Mr. White has access to some

records which would tend to support or undermine the defendants’ allegations is

itself nothing more than speculation. It certainly does not provide an evidentiary

basis. More importantly, I question whether whatever evidence he could give

would be relevant to the particulars motion, because that motion hinges on the

sufficiency of the pleadings themselves, and whether there are sufficient

particulars to enable the third parties to plead to the claim alleged against them.
 -8-

[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

2008 CanLII 3226 (ON SC)

allegations. The evidence in support of those allegations may or may not come

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

claim being made to be able to respond properly.

[14] As Master Dash found in Clarke et al v. Madill et al (2001), 57 O.R. (3d)

730, echoing the words of Master Peterson in Kendal v. Greymac Mortgage

Corp., [1985] O.J. No. 1628 (H.C.J.):

“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.

et al v. Heap et al (1975), 7 O.R. (2d) 185, Master Dash held that:

“…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.”
 -9-

[16] There, Master Dash found that the service of the summons to witness

2008 CanLII 3226 (ON SC)

was done to enable a “fishing expedition”, and also to circumvent an issue which

was to be determined on a refusals motion, before the court had an opportunity

to determine whether the information should be produced. He held that use of

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

answers in cross-examination on his affidavit, and even the correspondence of

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

recorded or stored by means on any device in your possession, control or power

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,
 - 10 -

and other examples in the motion material, that third party counsel is not seeking

particulars of the claim being made so that a responding pleading can be

2008 CanLII 3226 (ON SC)

delivered, but rather is seeking the disclosure and discovery of the very evidence

upon which the claim being pleaded is founded. An attempt to elicit this type of

evidence on a 39.03(1) examination, particularly when the examination is of an

employee of a party to the action, is an abuse of the court process.

[19] Applying the tests referred to above, I find that:

(1) there is no evidentiary basis for the proposed examination;

(2) it would be an abuse of process to allow the examination to go

ahead; and,

(3) the summons itself is too wide.

[20] On these grounds alone, therefore, the application to quash the

summonses must succeed.

[21] In addition to the foregoing, however, while the case law is conflicting, I

am satisfied that 39.03(1) is not intended to provide “discovery of a party”, which

is virtually what is being sought here.

[22] While it is not essential to determination of the application before me, I

also find, based in part on Mr. Ingle’s affidavit of November 29th, and his cross-
 - 11 -

examination on it, together with his defence to counterclaim in action 145/04, in

which he is plaintiff against Global Excel Management Inc., that he is in

2008 CanLII 3226 (ON SC)

possession of sufficient particulars of the claim being alleged against him to be

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

the judge hearing the actual motion for particulars itself.

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

successful moving party will deliver a short written argument in support of

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

costs in writing, and will fax it to counsel.

 - 12 -

“original signed by Belleghem J.”

___________________________

2008 CanLII 3226 (ON SC)

Belleghem J.

Released: January 31, 2008

 COURT FILE NO.: 540/07A and 541/07A
DATE: 2008/01/31

2008 CanLII 3226 (ON SC)

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

PALMS OF PASADENA HOSPITAL

Plaintiff/Responding Party

- and –

ROYAL & SUNALLIANCE INSURANCE

COMPANY OF CANADA et al

Defendants/Moving Party

- and -

INGLE et al

Third Parties/Responding Parties

REASONS FOR RULING

(RULE 39.03(1))

Belleghem J.

Released: January 31, 2008