BETWEEN:
DAVID CUDDY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
ORDER AND REASONS FOR ORDER
Jorré J.
[1]
The parties agree on part of the timetable for
this litigation. They disagree on whether the order should provide for follow‑up
questions, if any, resulting from the answers to the undertakings. The dispute is premised on the
follow‑up questions being conducted by resuming the oral examination for
discovery.
[2]
The Appellant says that providing for such a
step amounts to authorizing a second discovery, something that is only
permitted with leave of the Court pursuant to rule 93(1) of the Tax Court of
Canada Rules (General Procedure). He is unwilling to consent to additional
discovery.
[3]
The Respondent says that this proposed step does
not amount to a second discovery because a party is limited to proper follow‑up
questions arising from discovery undertakings.
[4]
I agree with the main point made by both parties’
submissions; they are not inconsistent, however. They address related, but
different, matters.
[5]
The Appellant is correct that the rule requires
leave for a second discovery.
[6]
The Respondent is also correct that proper
follow‑up questions to undertakings do not amount to a second discovery.
Rule 95(2) deals with undertakings. It states:
(2) Prior to the examination for discovery,
the person to be examined shall make all reasonable inquiries regarding the
matters in issue from all of the party’s officers, servants, agents and
employees, past or present, either within or outside Canada and, if necessary,
the person being examined for discovery may be required to become better
informed and for that purpose the examination may be adjourned.
[7]
The second part of rule 95(2) clearly provides
that, after a person has informed himself, the discovery may be resumed thereby
placing the examining party back in the position that the examining party would
have been in had the answer been available immediately without the need for the
examinee to undertake to find the answer.
[8]
Thus, there is a general right to ask follow‑up
questions resulting from answers to undertakings. However, that right in itself
does not open the door to additional discovery beyond follow‑up
questions. It is also worth bearing in mind that discovery is always subject to
the supervision of the Court.
[9]
Consequently, it is reasonable for a timetable
to provide not only for a time to complete discovery, but also for a time to answer undertakings
and follow‑up questions.
[10]
I would add that I cannot see why a party
should, in the normal course, be required to make an application in order to
complete the discovery to which the party is entitled. There may at times be
special circumstances but, in the absence of special circumstances, one should
not introduce a step requiring an interlocutory application as a matter of
course where someone wishes to complete discovery as permitted by rule 95(2).
[11]
If, at a resumed hearing, questions are asked
that go beyond what the examinee believes to be proper follow‑up
questions, then the examinee can refuse to answer and the examining party may
apply to the Court for an order compelling the examinee to answer.
[12]
The Respondent expressed the view that because rule
92 says the examining party can conduct an oral examination or a written
examination but that party cannot do both unless given leave by the Court, the examining
party must ask follow‑up questions by resuming the oral examination for
discovery. While that is correct, I do not read the rules as preventing the
parties from agreeing not only that the undertakings will be answered in
writing but also that follow‑up questions, if any, will also be dealt
with in writing.
[13]
Of course, if the parties agree on both written
responses to the undertakings and written follow‑up questions and
answers, then the examinee can respond to proper follow‑up questions and
refuse to respond to questions the examinee believes to go beyond proper follow‑up.
It would then be up to the party who is examining to bring a motion to compel.
[14]
For these reasons, this order will deal with
follow‑up questions in the timetable.
[15]
The language used in the submissions indicates
that both parties are assuming undertakings will be answered in writing. In his
submissions, while the Appellant takes the position that leave of the Court
would be required for follow‑up questions if done by way of oral
examination, he also takes the position that the appropriate way to proceed is
by follow‑up questions in writing without there being a motion for
further discovery. Given that the Respondent’s position was that having opted
for oral discovery she was obliged to do follow‑up questions orally and
would do so “unless leave of the Court is granted to do
otherwise”, it is clear it that the Respondent is also willing to have
written follow‑up questions. As a result, it is clear that the parties
are prepared to proceed by written follow‑up questions and that will be
reflected in my order.
[16]
Accordingly, the order of 3 March 2016 is
replaced by the following order:
1. Each party shall prepare a list of documents pursuant to
section 81 of the Tax Court of Canada Rules (General Procedure) and
shall file and serve the list on the opposing party no later than 31 March
2016.
2. The
examinations for discovery shall be completed no later than 27 May 2016.
3. Undertakings
given at the examinations for discovery shall be satisfied no later than 30 June
2016.
4. Follow‑up
questions arising from the answers to the undertakings, if any, shall be delivered
no later than 29 July 2016.
5. Answers
to the follow‑up questions shall be delivered no later than 31 August
2016.
6. The
parties shall communicate with the hearings coordinator in writing, no later
than 14 October 2016, to advise the Court whether the case will settle,
whether a settlement conference would be beneficial or whether a hearing date
should be set. In the latter event, the parties shall file a joint application
to fix a time and place for the hearing in accordance with section 123 of the Tax
Court of Canada Rules (General Procedure) by said date.
[17]
Given that the written submissions only dealt,
in a limited way, with dates after 30 June 2016, I have somewhat
arbitrarily added in more time for subsequent steps. Should any of the dates
subsequent to 30 June 2016 be problematic for either party, I invite them
to make submissions in writing or, even better, a joint submission and I will
reconsider those dates.
Signed at Ottawa, Ontario, this 29th day of March 2016.
“Gaston Jorré”
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