Rowe,
D.J.T.C.C.:—
The
respondent,
upon
notice
of
motion,
pursuant
to
the
Rules
pertaining
to
appeals
under
the
General
Procedure
of
the
Court,
applied
for
an
order:
(a)
that
the
respondent
be
permitted
to
file
an
amended
reply
to
notice
of
appeal,
pursuant
to
Tax
Court
Rule
54
and
(b)
that
the
respondent
be
permitted
to
conduct
an
examination
for
discovery
of
Michael
Craig,
a
non-party,
pursuant
to
Rule
93,
as
stated
in
the
motion,
and/or
Rule
99,
added
prior
to
oral
argument
as
the
basis
for
the
application.
Counsel
for
the
respondent
presented
the
proposed
amended
reply.
Counsel
for
the
appellant
advised
he
had
no
objection
to
the
proposed
amendments
to
paragraphs
6(d)
and
6(g)
as
outlined.
However,
he
did
object
to
the
additional
amendments
sought
to
be
made
at
paragraphs
8(b)
and
12
of
the
proposed
amended
reply.
I
will
deal
with
the
matter
of
the
amendment
before
moving
on
to
deal
with
the
request
of
the
respondent
to
conduct
an
examination
for
discovery
of
Mr.
Craig,
which
amounts
to
a
further
examination
by
the
respondent,
having
already
examined
a
party
produced
by
the
appellant.
However,
the
party
already
examined
was
Mr.
Geer
and
therefore
Rule
93
is
not
the
one
governing
this
situation
and
instead,
Rule
99
is
applicable.
The
appellant,
International
Innopac
Inc.,
herein
called
Innopac
I,
appeals
from
a
reassessment
of
income
tax,
dated
August
7,
1992,
in
respect
of
its
1985
taxation
year.
Innopac
I
was
formed
on
January
31,
1985
as
stated
in
the
notice
of
appeal
or
on
February
1,
1985
as
stated
in
the
reply,
by
the
amalgamation
of
Innopac
Inc.,
(herein
called
Innopac),
and
Photochemical
Research
Associates
Inc.
(herein
called
PRA).
In
January,
1985,
Innopac
purchased
the
shares
of
PRA
at
a
cost
of
$720,000.
In
computing
income
for
its
taxation
year
ended
August
31,
1985,
the
first
fiscal
year
after
the
amalgamation,
Innopac
I
deducted
a
noncapital
loss
in
the
amount
of
$2,580,313
and
claimed
an
investment
tax
credit
in
the
sum
of
$379,412,
both
of
which
were
attributable
to
PRA
for
its
taxation
year
ending
January
31,
1985.
The
Minister
of
National
Revenue
assessed
the
appellant's
predecessor
corporation
on
the
basis
the
result
of
the
sale
of
PRA's
shares
to
Innopac
was
that
one
or
more
of
the
PRA
group,
pursuant
to,
or
part
of
a
series
of
transactions
conferred
a
benefit
in
the
amount
of
$458,264
on
Innopac
l
in
its
1985
taxation
year.
The
appellant
at
paragraph
13
of
the
notice
of
appeal
stated:
The
appellant
says
that
in
purchasing
the
shares
of
PRA,
Innpac
I
[sic]
was
at
all
times
acting
at
arm’s
length
with
the
vendor
with
the
result
that
if
the
transaction
was
otherwise
to
give
rise
to
a
benefit,
which
is
not
admitted
and
is
expressly
denied,
the
inclusion
of
such
a
benefit
pursuant
to
the
provisions
of
subsection
245(2)
of
the
Act
would
be
denied
by
subsection
245(3)
of
the
Act.
The
respondent
in
the
reply
to
notice
of
appeal
did
not
admit
that
allegation
of
fact
and
in
paragraph
2
of
the
reply
specifically
denied
the
allegations
of
fact
and
law
contained
in
paragraphs
11-15,
inclusive,
of
the
notice
of
appeal.
The
respondent
seeks
permission
to
file
an
amended
reply
to
notice
of
appeal
by
adding
a
legal
argument,
based
on
the
facts
already
pleaded,
that
Innopac
Inc.,
the
predecessor
of
the
appellant,
was
not
acting
at
arm's
length
with
PRA
and
other
parties
in
purchasing
the
shares
of
PRA
because
they
were
accommodating
each
other's
interests
by
acting
in
concert
pursuant
to
the
direction
of
a
common
mind,
which,
as
a
matter
offact,
rendered
their
dealings
not
at
arm's
length.
The
proposed
amended
reply
contains
no
new
assumptions
of
fact.
The
reply
to
notice
of
appeal,
at
paragraph
8(b)
stated
the
issue
was:
Whether
the
sale
was
entered
into
pursuant
to,
or
as
part
of,
any
other
transaction
within
the
meaning
of
subsection
245(3)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
The
proposed
paragraph
8(b)
in
the
amended
reply
would,
if
permission
is
granted,
read:
Whether
the
sale
was
entered
into
by
persons
dealing
at
arm's
length,
or
was
entered
into
pursuant
to,
or
as
part
of,
any
other
transaction,
within
the
meaning
of
subsection
245(3)
of
the
Income
Tax
Act.
The
reply
to
notice
of
appeal
at
paragraph
12
states:
He
further
submits
that
the
true
substance
of
the
transactions
was
not
a
purchase
of
PRA’s
shares
by
Innopac,
but
rather
an
acquisition
of
PRA's
income
tax
deductions,
tax
credits
and
non-capital
losses
with
a
value
far
in
excess
of
the
purchase
price.
The
proposed
amendment
is
to
substitute,
as
paragraph
12,
the
following:
He
submits
that
the
sale
also
does
not
fall
within
the
exception
set
out
in
subsection
245(3)
of
the
Income
Tax
Act
because
the
sale
was
not
entered
into
by
persons
dealing
at
arm's
length,
as
one
or
more
of
the
PRA
group
and
Innopac
were
accommodating
each
other’s
interests
by
acting
in
concert
pursuant
to
the
direction
of
a
common
mind
and
this,
as
a
matter
of
fact,
rendered
their
dealings
not
at
arm's
length.
Counsel
for
the
respondent
submitted
that
there
are
no
changes
in
the
assumptions
of
fact
contained
in
the
proposed
amended
reply.
Further,
there
would
be
no
prejudice
accruing
to
the
appellant
as
the
reply
did
not
admit
the
allegation
in
the
notice
of
appeal
that
the
parties
were
at
arm's
length.
In
addition,
a
status
hearing
has
been
scheduled
at
the
end
of
July,
1994
and
no
delays
would
be
caused
by
the
filing
of
the
amended
reply
and
it
would
enable
the
hearing
judge
to
have
all
of
issues
of
fact
and
law
clearly
set
forth
which
would
be
raised
at
the
appeal.
Counsel
for
the
appellant
referred
to
the
affidavit
of
lan
J.
Gamble,
barrister
and
solicitor,
filed.
Annexed
to
that
affidavit,
as
Exhibit
C,
is
a
copy
of
the
T401,
report
on
objection,
prepared
by
Sonja
Mitchell,
produced
in
response
to
an
undertaking
given
in
the
course
of
the
examination
for
discovery
of
her.
As
the
appeal
officer,
dealing
with
the
appellant's
notice
of
objection,
at
paragraph
6.6
on
page
8
of
the
T401
report,
she
wrote:
The
first
of
the
conditions
in
subsection
245(3)
is
that
the
transactions
must
be
at
arm's
length.
This
condition
is
met.
Annexed
to
the
affidavit
of
Mr.
Gamble
as
Exhibit
B,
are
pages
3-6,
inclusive,
of
the
transcript
of
the
examination
for
discovery
of
Sonja
Mitchell.
The
transcript
reveals
that
Sonja
Mitchell
did
not
have
any
additional
facts
to
suggest
that
the
target
company
and
Innopac
I
were
not
dealing
at
arm’s
length
immediately
prior
to
the
share
purchase,
although
Ms.
LLoyd,
counsel
for
the
respondent,
remained
unconvinced
that
was
the
case
and
stated
her
position
for
the
record.
Counsel
for
the
appellant
submitted
the
respondent
should
not
be
permitted
to
tile
the
amended
reply,
as
proposed,
except
for
the
minor
amendments
to
paragraphs
6(d)
and
6(g),
to
which
he
had
no
objection,
as
the
assumptions
of
fact
remain
unchanged
in
the
proposed
amended
reply
and
do
not
give
rise
to
any
possible
conclusion
of
fact
that
persons,
not
related
to
each
other,
were
not
dealing
at
arm's
length.
Further,
the
appeal
officer
had
concluded
the
parties
were
dealing
at
arm's
length
and
was
unable
at
the
examination
for
discovery
to
provide
additional
facts
and
did
not
retract
the
position
she
had
taken
in
preparing
the
T401.
The
question
then
posed
by
counsel
for
the
appellant
was
this:
why
should
the
Court
allow
an
amendment
to
put
into
question
the
arm's
length
issue
when
it
clearly
does
not
arise
from
any
new
facts
and
for
which
there
is
evidence
to
the
contrary,
thereby
making
it
plain
there
is
no
underlying
support
for
such
a
proposition.
In
Continental
Bank
Leasing
Corp.
v.
Canada,
[1993]
1
C.T.C.
2306,
93
D.T.C.
299,
the
Honourable
Judge
Bowman,
Tax
Court
of
Canada,
dealt
with
the
situation
where
counsel
for
Her
Majesty
the
Queen
sought
leave
to
amend
the
replies
that
were
filed
to
the
appellant’s
notices
of
appeal
to
add
a
number
of
paragraphs
and
to
withdraw
an
admission
of
one
paragraph
in
one
notice
of
appeal.
At
pages
2309-10
(D.T.C.
301)
of
his
judgment,
Judge
Bowman
stated:
Section
54
and
132
of
the
Tax
Court
Rules—General
Procedure,
read
as
follows:
54.
A
pleading
may
be
amended
by
the
party
filing
it,
at
any
time
before
the
close
of
pleadings,
and
thereafter
either
on
filing
the
consent
of
all
other
parties,
or
with
leave
of
the
Court,
and
the
Court
in
granting
leave
may
impose
such
terms
as
are
just.
132.
A
party
may
withdraw
an
admission
made
in
response
to
a
request
to
admit,
a
deemed
admission
or
an
admission
in
the
party's
pleading
on
consent
or
with
leave
of
the
Court.
Subsection
4(1)
of
those
rules
provides:
4(1)
These
rules
shall
be
liberally
construed
to
secure
the
just,
most
expeditious
and
least
expensive
determination
of
every
proceeding
on
its
merits.
These
provisions
give
the
Court
a
broad
discretion
to
permit
the
withdrawal
of
admissions
and
the
amendment
of
pleadings
where
it
is
in
the
interests
of
justice
to
do
so.
I
was
referred
to
a
number
of
cases
in
the
courts
of
British
Columbia,
Ontario
and
the
Supreme
Court
of
Canada.
It
would
seem
that
there
has
been
a
relaxation
of
the
rule
that
an
admission
may
be
withdrawn
only
if
it
is
shown
to
be
wrong.
That
rule
was
stated
in
Canada
Permanent
Mortgage
Corp.
v.
The
City
of
Toronto,
[1951]
O.R.
726
(C.A.).
The
statement
of
the
rule
was
criticized
as
being
too
wide
by
Cartwright,
J.
(as
he
then
was)
in
Papp
Estate
v.
M.N.R.,
[1964]
S.C.R.
66,
[1964]
C.T.C.
128,
63
D.T.C.
1219,
and
a
party
was
permitted
to
withdraw
an
admission
made
even
though
it
had
not
been
established
that
the
fact
admitted
was
untrue.
Courts
subsequently
have
applied
a
more
liberal
test
which
permitted
amendments
or
withdrawal
of
admissions
where
a
triable
issue
of
fact
or
law
is
thereby
raised
and
where
the
amendment
or
withdrawal
would
not
result
in
a
prejudice
to
the
opposing
party
that
was
not
compensable
in
costs.
Counsel
for
the
appellant
contended
that
no
evidence
had
been
adduced
to
show
that
the
proposed
amendments
raised
a
triable
issue.
I
think
that
this
submission
involves
an
unduly
narrow
reading
of
the
cases.
The
triable
issue
of
the
nature
and
substance
of
the
partnership
transaction
is
clearly
before
the
court
and
the
admission
of
paragraph
29
of
the
notice
of
appeal
is
inconsistent
with
the
other
allegations
in
the
reply,
some
of
which
were
already
pleaded
and
some
of
which
are
proposed
to
be
added,
without
objection.
New
paragraphs
23
and
24
are
simply
a
more
elaborate
articulation
of
the
basic
position
taken
by
the
Minister,
the
best
evidence
of
which
is
the
making
of
the
assessment
itself.
In
these
circumstances
there
is
no
need
for
further
evidence.
It
was
also
contended
that
the
party
moving
for
the
amendment
had
an
onus
of
showing
no
prejudice
by
the
amendment
to
the
party
opposing.
Counsel
for
the
appellant
did
not
suggest
that
there
was
any
prejudice
and
I
should
have
thought
that
if
there
were
prejudice
that
was
not
compensable
in
costs
it
would
be
reasonable
to
expect
the
opposing
party
to
adduce
evidence
to
that
effect.
It
is
difficult
in
any
event
to
see
what
significant
prejudice
the
appellant
has
suffered
apart
from
the
delay
in
proceeding
with
the
examination
for
discovery
of
an
officer
of
the
respondent
and
the
loss
of
the
tactical
advantage
of
not
having
to
prove
an
allegation
that
had
been
inadvertently
admitted
by
the
respondent.
Either
the
allegation
in
paragraph
29
is
true
or
it
is
not
true.
If
it
is
true
it
should
be
readily
provable
in
considerably
less
time
than
this
motion
has
taken.
If
it
is
not
true
it
should
not
have
been
admitted
and
the
Court
should
not
be
required
to
base
its
decision
on
an
erroneous
factual
premise.
While
I
do
not
doubt
the
authority
of
the
Attorney
General
of
Canada
to
make
admissions
of
fact
in
litigation
to
which
the
Crown
is
a
party,
it
must
be
recognized
that
there
is
a
public
interest
in
income
tax
appeals
and
the
Court
should
be
in
a
position
to
decide
cases
on
the
basis
of
correct
facts
and
properly
defined
issues.
It
would
do
no
credit
to
our
system
of
justice
in
Canada
if
the
courts
were
restricted
in
their
consideration
of
the
merits
of
a
case
by
an
ill-considered
admission
that
is
inconsistent
with
another
position
that
is
being
advanced,
particularly
where
it
is
sought
to
withdraw
such
an
admission
at
an
early
stage
in
the
proceeding.
This
is
equally
true
whether
the
party
seeking
to
change
its
position
is
the
taxpayer
or
the
Crown.
In
the
cases
in
the
courts
of
Ontario
and
of
British
Columbia
to
which
I
was
referred
a
number
of
tests
have
been
developed—whether
an
admission
was
inadvertent,
whether
there
is
a
triable
issue
raised
by
an
amendment
or
the
withdrawal
of
an
admission
and
whether
the
other
party
would
suffer
a
prejudice
not
compensable
in
costs.
Although
I
find
that
these
tests
have
been
met
I
prefer
to
put
the
matter
on
a
broader
basis:
whether
it
is
more
consonant
with
the
interests
of
justice
that
the
withdrawal
or
amendment
be
permitted
or
that
it
be
denied.
The
tests
mentioned
in
cases
in
other
courts
are
of
course
helpful
but
other
factors
should
also
be
emphasized,
including
the
timeliness
of
the
motion
to
amend
or
withdraw,
the
extent
to
which
the
proposed
amendments
would
delay
the
expeditious
trial
of
the
matter,
the
extent
to
which
a
position
taken
originally
by
one
party
has
led
another
party
to
follow
a
course
of
action
in
the
litigation
which
it
would
be
difficult
or
impossible
to
alter
and
whether
the
amendments
sought
will
facilitate
the
Court’s
consideration
of
the
true
substance
of
the
dispute
on
its
merits.
No
single
factor
predominates
nor
is
its
presence
or
absence
necessarily
determinative.
All
must
be
assigned
their
proper
weight
in
the
context
of
the
particular
case.
Ultimately
it
boils
down
to
a
consideration
of
simple
fairness,
common
sense
and
the
interest
that
the
courts
have
that
justice
be
done.
The
nature
of
the
motion
before
me
is
not
to
withdraw
any
previous
admission
but
rather
to
raise
in
an
active
sense,
rather
than
merely
by
passive
denial,
an
issue
despite
the
apparent
absence
of
any
concrete
reason
on
the
current
facts
to
argue
the
point.
However,
counsel
for
the
respondent
certainly
has
the
right,
before
the
appeal
is
heard,
to
discover,
through
other
means,
the
smoking
pistol.
From
the
material
disclosed
on
the
application
and
the
phraseology
utilized
by
Sonja
Mitchell
in
preparing
the
T401
and
by
Ms.
Lloyd,
counsel
for
the
respondent,
as
revealed
by
the
transcript
of
the
examination
for
discovery,
it
may
well
be
that
both
are
proceeding
on
the
basis
of
subsection
245(3)
of
the
Income
Tax
Act
as
it
now
stands
and
not
as
it
was
written
in
1985,
in
that
there
is
often
reference
to
a
“series
of
transactions”,
which
wording
does
not
apply
to
this
appeal.
However,
I
cannot
see
any
prejudice
to
the
opposing
partyand,
even
if
some
startling
new
facts
come
to
light,
the
appellant’s
case
will
remain
the
same
on
the
point
of
the
arm's
length
issue
and
it
will
not
have
to
amend
or
alter
its
strategy
or
direction
in
face
of
the
amendment.
The
amendment
will
not
create
any
delay
as
the
date
for
the
hearing
of
the
appeal
will
not
be
set
until
the
status
hearing
is
held
at
the
end
of
July,
1994.
Therefore,
all
amendments
sought
by
the
respondent
in
the
motion
are
permitted
and
the
amended
reply
to
notice
of
appeal,
as
proposed,
may
be
filed.
The
second
part
of
the
respondent's
motion
is
to
seek
permission
to
examine
Mr.
Michael
Craig,
Vice-President
of
Finance
and
Secretary
of
Innopac
Inc.,
the
predecessor
corporation
of
the
appellant,
during
its
1984
and
1985
taxation
years.
He
is
no
longer
in
the
employ,
or
an
officer,
of
the
appellant.
Counsel
for
the
respondent
submitted
that
an
examination
for
discovery
of
Mr.
Craig
would
not
be
a
fishing
expedition.
The
examination
for
discovery
of
Mr.
Peter
Geer,
vice-
chairman
and
managing
director
of
the
appellant
since
December,
1989,
revealed
that
he
was
unable
to
answer
many
of
the
questions
asked
of
him
by
counsel.
To
that
end,
counsel
filed
the
affidavit
of
Ms.
Yoshida,
barrister
and
solicitor,
employed
by
the
Tax
Litigation
section
of
the
Department
of
Justice,
to
which
was
annexed
certain
portions
of
the
examination
for
discovery
of
Mr.
Geer.
The
affidavit
of
Ms.
Yoshida
also
revealed
that
Mr.
Craig,
as
indicated
by
annexed
exhibits,
was
involved
in
investigating,
structuring
and
putting
before
the
directors
of
Innopac
Inc.
certain
documents
relating
to
the
transaction
at
issue
in
the
appeal.
Counsel
for
the
appellant
submitted
that
Mr.
Craig
could
not
possibly
assist
regarding
any
pre-merger
PRA
documents
and
it
would
be
doubtful
that
he
could
identify
certain
other
documents
when
the
respondent
did
not
know
of
their
origin.
Mr.
Geer
answered
all
questions
to
the
best
of
his
ability
and
there
was
no
unwillingness
to
cooperate
demonstrated
in
his
answers.
Further,
there
was
complete
compliance
of
all
undertakings
demanded
of
him.
In
Lipper
v.
The
Queen,
[1980]
1
F.C.
827,
80
D.T.C.
6248,
Walsh,
J.
of
the
Federal
Court-Trial
Division,
heard
an
application
by
the
defendant
to
have
a
further
examination
of
a
person
who
was
not,
personally
or
through
his
corporation,
a
party
to
the
proceedings.
At
page
829
(D.T.C.
6249)
of
his
judgment,
Walsh,
J.
stated:
At
the
examination
for
discovery
of
Lipper
he
frequently
stated
that
he
was
unable
to
answer
the
questions,
such
knowledge
being
that
of
Murray
Shostek
an
officer
of
Potterton
Productions
Inc.
who
arranged
the
sales
of
the
films,
and
in
fact
according
to
defendant’s
counsel
was
the
promoter
of
the
enterprise,
capable
of
giving
particulars
of
the
delay
in
distribution
of
the
film
Tiki
Tiki,
its
profit
potential,
and
whether
Potterton
(now
Intermedia)
ever
intended
to
collect
the
balance
due
on
the
sales.
However,
Lipper,
an
attorney,
has
now
allegedly
revealed
that
he
represents
either
Intermedia
or
Shostek
and
hence
can
refuse
to
answer
certain
questions
on
the
ground
of
professional
confidence.
Defendant’s
counsel
therefore
contends
that
without
an
opportunity
of
examining
Shostek
he
cannot
get
the
information
required
to
appreciate
the
case
which
defendant
is
required
to
meet.
Rule
465(19)
of
the
Rules
of
this
Court
relating
to
discovery
reads:
465(19)
The
Court
may,
for
special
reason
in
an
exceptional
case,
in
its
discretion,
order
a
further
examination
for
discovery
after
a
party
or
assignor
has
been
examined
for
discovery
under
this
Rule.
Clearly
this
is
not
intended
to
open
the
door
to
a
series
of
discoveries
including
that
of
persons
who
are
not
parties
to
the
case
nor
in
the
employ
of
a
party
but
may
merely
be
important
witnesses
possessing
pertinent
information
the
details
of
which
the
examining
party
wishes
to
ascertain.
On
the
other
hand
it
is
not
limited
to
the
reexamination
of
a
witness
already
examined
for
discovery,
nor
apparently
to
an
employee
or
agent
of
a
party.
At
page
831
(D.T.C.
6250)
of
his
judgment,
Walsh,
J.
continued
as
follows:
In
the
case
of
Bowlen
v.
The
Queen,
[1976]
C.T.C.
577,
76
D.T.C.
6334
(F.C.T.D.),
at
page
580
(D.T.C.
6336),
Smith,
D.J.
of
this
Court
in
commenting
on
Ontario
Rule
349
respecting
production
of
documents
by
persons
not
parties
to
the
action
said,
"there
has,
however,
been
general
judicial
agreement
that
the
Rule
is
not
intended
to
authorize
obtaining
discovery
from
a
stranger
to
the
action
nor
engaging
in
a
fishing
expedition”.
While
I
fully
agree
with
this,
it
would
appear
that
Shostek
is
in
possession
of
highly
pertinent
information
which
the
plaintiff
Lipper
cannot
or
will
not
provide
and
that
his
examination
for
discovery
may
be
very
useful
in
giving
necessary
factual
information
to
assist
in
the
final
determination
of
the
issues.
While
not
a
party
to
the
action
he
is
hardly
a
disinterested
third
party,
and
his
examination
is
not
in
the
nature
of
a
fishing
expedition.
Needless
to
say
objection
can
be
made
at
his
examination
to
any
question
eliciting
an
opinion
as
to
what
was
in
the
minds
of
plaintiff
and
his
associates,
their
motivation
on
a
non-expert
opinion
as
to
the
likelihood
of
success
of
the
movies
in
question,
but
proper
questions
eliciting
factual
information
which
he
has
in
his
possession
and
Mr.
Lipper
does
not,
or
is
prevented
from
revealing
for
reasons
of
professional
confidentiality
can
be
asked.
This
appears
to
be
a
proper
case
for
the
exercise
of
my
discretion
on
the
Rule
465(19).
The
relevant
rule
is
Rule
99(1)
and
(2)
which
reads
as
follows:
99(1)
The
Court
may
grant
leave,
on
such
terms
respecting
costs
and
other
matters
as
are
just,
to
examine
for
discovery
any
person
who
there
is
reason
to
believe
has
information
relevant
to
a
material
issue
in
the
appeal,
other
than
an
expert
engaged
by
or
on
behalf
of
a
party
in
preparation
for
contemplated
or
pending
litigation.
(2)
Leave
under
subsection
(1)
shall
not
be
granted
unless
the
Court
is
satisfied
that,
(a)
the
moving
party
has
been
unable
to
obtain
the
information
from
other
persons
whom
the
moving
party
is
entitled
to
examine
for
discovery,
or
from
the
person
sought
to
be
examined,
(b)
it
would
be
unfair
to
require
the
moving
party
to
proceed
to
hearing
without
having
the
opportunity
of
examining
the
person,
and
(c)
the
examination
will
not,
(i)
unduly
delay
the
commencement
of
the
hearing
of
the
proceeding,
(ii)
entail
unreasonable
expense
for
other
parties,
or
(iii)
result
in
unfairness
to
the
person
the
moving
party
seeks
to
examine.
Mr.
Geer,
the
party
already
examined
by
the
respondent,
was
unable
to
provide
information
relating
to
matters,
relevant
to
the
appeal,
that
had
occurred
several
years
before
he
became
an
officer
of
the
appellant.
Despite
some
previous
inability
on
the
part
of
the
respondent
to
locate
Mr.
Craig,
it
now
appears
that
his
whereabouts
are
known
and
that
he
would
make
himself
available
for
an
examination
for
discovery.
Certainly,
there
is
ample
reason
to
believe
he
would
have
information
relevant
to
material
issues
in
the
appeal.
It
would
be
unfair
to
require
the
respondent
to
proceed
to
hearing
without
having
the
opportunity
of
examining
this
person
and
such
examination
will
not
delay
the
commencement
of
the
hearing
of
the
appeal,
entail
unreasonable
expense
to
other
parties,
or
result
in
any
unfairness
to
Mr.
Craig,
the
party
sought
to
be
examined.
Therefore,
the
motion
to
examine
for
discovery
Michael
Craig
is
granted
and
an
order
to
that
effect
is
hereby
issued.
In
the
event
any
problems
arise
with
scheduling
such
discovery
or
any
other
matter
pertaining
thereto,
including
expenses
of
Mr.
Craig,
these
may
be
spoken
to
at
a
future
date.
The
application
by
the
respondent
for
the
relief
which
was
granted
was,
to
some
extent,
not
necessary,
provided
the
pleadings
had
been
done
properly
in
the
first
instance.
Also,
it
appeared
from
statements
made
by
counsel
for
the
respondent
at
the
hearing
of
the
motion
that
Mr.
Craig
could
have
been
interviewed,
and
possibly
examined,
earlier
but
there
was
some
problem
with
the
auditor’s
notes
and
the
file
was
subject
to
some
difficulties
in
setting
out
the
involvement
of
Mr.
Craig
and
his
whereabouts
so
that
counsel
for
the
respondent
was
required
to
unravel,
over
time,
some
of
the
material
so
as
to
put
certain
events
in
their
proper
context.
As
a
consequence,
the
respondent,
as
the
moving
party,
will
pay
costs,
on
a
party-party
basis
to
the
appellant
opposing
party,
pursuant
to
the
appropriate
tariff
of
the
Rules
relating
to
such
matters
as
this
motion.
Motion
allowed.
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