Date: 19990330
Docket: T-1845-98
OTTAWA, ONTARIO, THIS 30th DAY OF MARCH 1999
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
EMILE MARGUERITA MARCUS MENNES
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
[1] There is before the Court a Notice of Motion brought by the Defendant Her Majesty the Queen in which Her Majesty seeks an order striking out the Plaintiff"s written Examination for Discovery. The action is brought by the Plaintiff, an inmate of the Warkworth Institution, as a result of the failure of the Institution"s officials to approve the purchase of a computer by the Plaintiff from another inmate. The is brought as a simplified action pursuant to Rules 292 to 299 of the Federal Court Rules 1988 .
[2] The motion is brought because the Plaintiff, in purported compliance with Rule 296, has served upon the Defendant his Written Examination for Discovery, that is the questions which he seeks to have put to the Defendant. There are 18 enumerated questions but the majority of these incorporate sub-questions so that in fact more than 50 questions are asked. The questions are directed to Ole Ingstrup, the Commissioner of the Correctional service of Canada. Mr. Ingstrup has not been designated to represent Her Majesty pursuant to Rule 237(2). The Defendant objects to the fact that the questions are directed to Mr. Ingstrup given his lack of designation. She also objects to the great majority of the questions on the ground that they are either irrelevant, unnecessary, or unreasonable. Having reviewed the questions, I am inclined to agree with the Defendant"s assessment.
[3] The difficulty is that the Rule 298 does not permit the bringing of a motion in a simplified action except at a pre-trial conference, subject to certain exceptions which are not relevant here. If that is the case, how should the parties deal with the problem of objectionable questions in the written Examinations for Discovery.
[4] It is important to note that while the Examination for Discovery is to take place in writing rather than orally, the rules as to the scope and purpose of Examinations for Discovery remain unchanged. The appropriateness of questions continues to be assessed by the same principles as in an oral examination, that is, is the question broadly relevant to the issues in the law suit and not otherwise protected by privilege or other exclusionary rule. Where a party takes the position that a question is not appropriate, that party has the option of refusing to answer the question and stating the basis of its objection. It is then for the party posing the question to determine whether the matter should be pursued by way of motion returnable at the pre-trial, when its date is known, seeking an order compelling an answer. In the case of a question where the objection is that the answer is subject to privilege or some other exclusionary rule, the answering party should answer the question under seal, on the understanding that the pre-trial judge will determine whether privilege or the benefit of some other exclusionary role is properly claimed.
[5] The direction of questions to a specific individual does not detract from the Attorney General"s right to designate a representative to represent the Crown. If the question is otherwise a proper question, the designated representative would inform himself/herself of the position of the specific individual and provide the answer. If the question is not proper, then the designated officer could decline to answer setting out the grounds for his refusal. This would then be tested in the same way as other questions to which objection is taken. The relevance of the views or knowledge of a particular individual would have to be assessed in the context of the issues in the litigation.
[6] Given the terms of Rule 298 I have no choice but to dismiss the motion. However, with respect to the Plaintiff"s questions, I make the following direction. The Plaintiff is to recast his questions so that each question is separately enumerated and the total number of questions does not exceed fifty. The questions are then to be resubmitted to the Defendant for her consideration.
"J.D. Denis Pelletier"
Judge
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