Examination of a Non-Party
When can someone who is not a party to the litigation be examined? The Court may grant leave to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.
Pursuant to Rule 31.10 of the Rules of Civil Procedure, such an order can be made if 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 the party seeks to examine;
b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
c) the examination will not,
i. unduly delay the commencement of the trial of the action,
ii. entail unreasonable expense for other parties, or
iii. result in unfairness to the person the moving party seeks to examine.
In Ryndych v. Hamurak, 1999 Carswellont 4061,  O.J. No. 4718, Molloy J. allowed the examination of the minister who performed a marriage ceremony between the defendant and the deceased, who died intestate. The plaintiffs had attempted to interview the minister but she refused to answer questions. The validity of the marriage was central to the case and it was very likely that the minister had information relevant to the issues in this action that was not available from any party. The Court commented that it would be unfair to require the plaintiffs to go to trial without having the opportunity to examine the minister who officiated at the wedding.
Further, the Court found that it was not necessary for the plaintiffs to serve their notice of motion on the non-party they sought to examine. The intention of the Rules was not to require service of the notice of motion on the non-party. The position of the non-party was protected under the Rules because a person affected by an order obtained without notice was entitled to bring a motion to have the order set aside. There was also no requirement that plaintiffs examine the defendant prior to examining the non-party.
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