(No) Second Chances: When can you examine additional corporate representatives?

  • November 04, 2020
  • Jacqueline L. King and Matilda Lici, Shibley Righton LLP

In the aftermath of a seemingly unsatisfactory examination for discovery of a corporate representative, many lawyers will look to Rule 31.03 for recourse to examine a second representative. Justice Perell released a decision[3] that offers guidance on the requirements for leave to examine a second witness.

The facts:

In Fischer v. IG Investment Management Ltd., the plaintiffs sought leave to examine second representatives for each of the defendants, AIC Limited (AIC) and CI Investments Inc. (CI). Neither of the witnesses were the plaintiffs’ first choice of representative. However, even though an examining party is entitled to their choice of witness,[4] the plaintiffs ultimately acquiesced and examined Geri DeWeerd as AIC’s representative and Gregory Shin as CI’s representative.

The Court was satisfied that both of the witnesses had diligently prepared for the examinations and familiarized themselves with the relevant documents. Both Ms. DeWeerd and Mr. Shin had informed themselves by making inquiries both before and after their respective examinations. Ms. DeWeerd was examined for three days and was asked over 1,100 questions. But for 70 questions taken under advisement, she answered all questions, including the 116 undertakings that were given. Of the 70 questions taken under advisement, she subsequently answered 57 of them.

Mr. Shin was examined for three days and was asked 2,274 questions. Only 10 questions were refused on the basis of relevance and privilege and five of those refusals were subsequently withdrawn and answered. In addition, he answered 48 undertakings and 79 of 83 questions taken under advisement.

The plaintiffs did not bring a refusals motion regarding the answers provided by either witness. On their motion for leave to examine second representatives, the plaintiffs argued that, as a matter of justice, they were entitled to satisfactory answers and all information relevant to the material issues.