T-345-88
Lois Taylor, Ann Ward and Eva Campbell
(PlaintiffslAp plicants)
v.
Her Majesty the Queen (DefendantlRespondent)
INDEXED AS. TAYLOR V. CANADA (T.D.)
Trial Division, Jerome A.C.J.—Edmonton, February
4; Ottawa, August 16, 1991.
Practice — Discovery — Examination for discovery —
Application to compel response to questions on discovery and
for further discovery — Constitutional challenge to Old Age
Security Act — Over 1600 documents produced on discovery
— Officer of defendant refusing to indicate facts relied upon
for defence under Charter, s. /5(2) and l — "Reliance" ques
tions potentially improper as require product of witness' plan
ning and seeking law as witness required to use applicable law
to select facts — Complexity and volume of documents may
entitle opposing party to definition of those parts of documents
relied upon — Applicants given opportunity to rephrase ques
tions to conform to examples in Can-Air Services Ltd. v. Brit-
ish Aviation Insurance Co. Ltd. — Request for further discov
ery denied — Not establishing special reason in exceptional
case—Already extensive discovery, delay in requesting partic
ulars and no new issues raised in demand for particulars.
This was an application for an order pursuant to Rule
465(18) to compel a response to questions objected to at dis
covery and for an order pursuant to Rule 465(19) to permit fur
ther discovery on particulars. In 1988, the plaintiffs com
menced an action challenging the constitutional validity of
certain provisions of the Old Age Security Act. Examination
for discovery took place between June 1989 and April 1990,
during which the defendant's officer refused to answer certain
questions. In October 1990 the plaintiffs made a demand for
particulars seeking a precise statement of the material facts on
which the defendant relied in support of its defences under
Charter, subsection 15(2) and section 1. Over 1600 documents
were produced at examination for discovery. The plaintiffs
submitted that because the documents were voluminous and
complex, the defendant should be obliged to indicate the spe
cific parts of the documents on which it relies. They also
argued that further discovery was necessary to explore new
issues raised in the particulars. The defendant submitted that in
light of the extensive examination already conducted, it would
be unreasonable and unfair to order that the questions be
answered. Furthermore, many questions demanded the produc-
tion of the defendant's planning, argument and trial strategy,
intruded upon matters of solicitor-client privilege and were
improper as not required to disclose the basis upon which doc
uments were considered relevant. The defendant also submit
ted that Rule 465(19) sets a very high threshold and states that
the plaintiffs can establish neither special reason nor an excep
tional case.
Held, as to the application for an order to compel answers,
the plaintiffs should be allowed to rephrase the "reliance"
questions in accordance with the examples in Can-Air Services
Ltd. v. British Aviation Insurance Co. Ltd.; the application for
an order for further discovery should be denied.
The propriety of any question on discovery must be deter
mined on the basis of its relevance to the facts pleaded in the
statement of claim as constituting the cause of action rather
than on its relevance to facts which the plaintiff proposes to
prove to establish the facts constituting its cause of action.
"Reliance questions" or questions that ask the witness on what
facts he relies to support an allegation have been held to be
improper because they require the witness to select only those
facts upon which he relies—they demand a product of the wit
ness' planning. Such questions also attempt to avoid the rule
that an examination for discovery may only seek facts, not law,
by forcing the witness to think of the applicable law and use it
to select facts and then announce the result. However, the pro
priety of questions may depend upon the importance and com
plexity of documents. There may be cases where the docu
ments are so voluminous and complex that the opposing party
is entitled to obtain some definition from the plaintiff of those
parts upon which he intends to rely in order to accomplish the
purposes of discovery. In such circumstances, Côté J.A. in
Can-Air gave some examples as to how reliance questions
could be rephrased to become purely factual. The selection,
identification and isolation of a party's own productions as to
the various allegations, issues and events in the litigation is
more in the nature of fact disclosure than evidence disclosure.
Introduction of documents without provision as to what por
tions are actually relied upon is not desirable.
Given the importance of the issue and the great number of
documents, it was appropriate that the defendant give the
plaintiffs some definition of those parts upon which she
intends to rely. The Rules of Court should not be applied so as
to prevent the Court from having full access to all information
which is relevant and pertinent to enable it to arrive at a just
conclusion.
The party seeking further examination for discovery under
Rule 465(19) must establish that it does so for special reason in
an exceptional case. While the written requests for particulars
and the replies thereto become part of the pleadings, the
defendant's reply to the demand for particulars did not raise
new issues such that a further examination for discovery was
warranted. In light of the delay in requesting particulars, the
extensive discovery that has taken place and the fact that no
new issues have been raised in the particulars, the plaintiffs
have not made out special reasons to warrant this exceptional
remedy.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix I1,
No. 44], ss. 1, 15, 24.
Federal Court Rules, C.R.C., c. 663, R. 465.
Old Age Security Act, R.S.C. 1970, c. O-6.
CASES JUDICIALLY CONSIDERED
APPLIED:
Can-Air Services Ltd. v. British Aviation Insurance Co.
Ltd. (1988), 91 A.R. 258; [1989] I W.W.R. 750; 63 Alta.
L.R. (2d) 61; 30 C.P.C. (2d) 1 (C.A.); Leliever v. Lindson
(1977), 3 C.P.C. 245 (Ont. H.C.); Rule-Bilt Ltd. v.
Shenkman Corporation Ltd. et al. (1977), 18 O.R. (2d)
276; 4 C.P.C. 256 (S.C.); Beloit Canada Ltee/Ltd. et al. v.
ValmetOy (1981), 60 C.P.R. (2d) 145 (F.C.T.D.); Ethicon
Inc. et al. v. Cyanamid of Canada Ltd. (1977), 35 C.P.R.
(2d) 126 (F.C.T.D.); Imperial Marine Industries Ltd. v.
Fireman's Fund Insurance Co., [1977] 1 F.C. 747 (T.D.);
Johnson (S.C.) and Son Ltd. v. Pic Corp. et al. (1975), 19
C.P.R. (2d) 26 (F.C.T.D.); Geo Vann, Inc. v. N.L. Indus
tries, Inc. (1984), 1 C.P.R. (3d) 277 (F.C.T.D.).
CONSIDERED:
Sperry Corporation v. John Deere Ltd. et al. (1984), 82
C.P.R. (2d) 1 (F.C.T.D.); Armstrong Cork Canada Ltd. et
al. v. Domco Industries Ltd. et al. (1983), 71 C.P.R. (2d)
5; 48 N.R. 157 (F.C.A.); Champion Packaging Corp. v.
Triumph Packaging Corp., [1977] I F.C. 191; (1976), 29
C.P.R. (2d) 284; 14 N.R. 43 (C.A.).
COUNSEL:
T. Huckell and E. Ticoll for plaintiffs (appli-
cants).
John B. Laskin for defendant (respondent).
SOLICITORS:
Travis Huckell, Edmonton, for plaintiffs (appli-
cants).
Tory, Tory, DesLauriers & Binnington, Toronto,
for defendant (respondent).
The following are the reasons for order rendered in
English by:
JEROME A.C.J.: This matter came on for hearing at
Edmonton, Alberta on February 4, 1991. By notice of
motion dated January 8, 1991, the plaintiffs seek an
order pursuant to Rule 465(18) [Federal Court Rules,
C.R.C., c. 6631 to compel the officer of the defen
dant, Mr. Rodney Hagglund, to respond to questions
objected to at discovery and an order pursuant to
Rule 465(19) to permit further discovery on the par
ticulars submitted by the defendant on November 21,
1990.
BACKGROUND:
This application arises from an action commenced
by the plaintiffs in Edmonton, Alberta on February
25, 1988 (the "action") involving a constitutional
challenge to the Old Age Security Act, R.S.C. 1970, c.
O-6, as amended (the "Act"). In the statement of
claim the plaintiffs request a declaration that provi
sions of the Act which establish the Widowed
Spouse's Allowance discriminate on the basis of mar
ital status contrary to section 15 of the Canadian
Charter of Rights and Freedoms (the "Charter")
[being Part I of the Constitution Act, /982, Schedule
B, Canada Act /982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]]. The plaintiffs also
request an order pursuant to subsection 24(1) of the
Charter to amend the Act by removing all references
to marital status and to direct the defendant to pay to
the plaintiffs the Widowed Spouse's Allowance from
the respective date of each plaintiffs application. In a
statement of defence filed March 23, 1988, the defen
dant denies that the said provisions of the Act
infringe subsection 15(1) of the Charter. In the alter
native, the defendant states that these provisions fall
within subsection 15(2) of the Charter which pro
vides an exemption from subsection 15(1) for any
law that has as its object the amelioration of condi
tions of disadvantaged individuals or groups. In the
further alternative, the defendant submits that the
provisions are justified under section I of the Charter.
Two similar actions have been commenced in this
Court, one in Ontario (the "Granek action") and one
in Nova Scotia (the "Collins action"). Upon motion
by the defendant, an order was made by Giles A.S.P.
on March 26, 1990 providing inter alia that the
action be tried at the same time as the Granek and
Collins actions, that there be a common examination
for discovery of the defendant, and that unless other
wise agreed or directed, statements of expert evi
dence be served and filed not less than 30 days before
the commencement of trial.
The examination for discovery in the Granek and
Collins actions of Mr. Rodney Hagglund on behalf of
the defendant commenced on June 21 and 22, 1989.
Mr. Hagglund is the Assistant Director General for
Policy and Legislation in the Programs Policy
Appeals and Legislation Directorate of the Income
Security Programs Branch of the Department of
National Health and Welfare. The examination was
continued on October 4, 1989 and counsel for the
plaintiffs agreed that the previous examination con
ducted in the Granek and Collins actions would also
apply to this action. The examination for discovery
was continued and concluded on April 30, 1990 sub
ject to undertakings and objections. During the
course of discovery, the defendant produced a list of
over 1600 documents which filled twelve large bind
ers. The questions which Mr. Hagglund refused to
answer during the examination are set out in Exhibit
"A" to the affidavit of Lois Taylor sworn January 8,
1991. The defendant has categorized the questions in
the following manner which was referred to, in argu
ment, by both parties:
(a) questions seeking identification of the facts or documents
on which the defendant relies in support of certain allegations
in the defence; (Items 1-3 and 5-11)
(b) questions seeking disclosure of the arguments to be
advanced by the defendant at trial in support of certain allega-
tions in the defence, and of the facts on which the defendant's
trial strategy is based; (Items 14 and 19-20)
(e) questions concerning the basis on which certain documents
produced by the defendant were considered relevant to the
issues in the action; (items 13 and 15-17)
(d) a question seeking, in effect, particulars of the defendant's
plea in reliance on section 15(2) of the Charter; (Item 4)
(e) a question asking that Mr. Hagglund identify in the produc
tions support for a statement made in a document concerning
the legislation in issue prepared by the Library of Parliament;
(item 12) and
(f) a question seeking production of studies that may have been
prepared in connection with legislative programs other than the
legislative program in issue in the action. (Item 18)
On October 9, 1990 the plaintiffs' solicitors made
a formal demand for particulars, seeking "a precise
statement of the material facts on which the defen
dant relies for paragraphs 5, 6 and 7 of its pleadings".
The defendant responded to the demand on Nov-
ember 21, 1990 as follows:
Paragraph 5 of the Defence
I. The defendant's denial in paragraph 5 of the defence that the
provisions of the Old Age Security Act (the "Act") which
establish the widowed spouses allowance infringe or deny any
right set out in section 15(1) of the Charter is a matter for legal
argument at trial and does not require particulars.
Paragraph 6 of the Defence
2. The following are the material facts upon which the defen
dant relies in support of the allegation in paragraph 6 of the
defence that the provisions of the Act which establish the wid
owed spouses allowance come within section 15(2) of the
Charter:
(a) The object of the provisions is the amelioration of the con
ditions of widowed spouses aged 60 to 64.
(b) Those assisted by the provisions, most of whom are
women, are financially disadvantaged.
(c) The limited economic resources of the Government of
Canada have to date precluded the extension of similar
benefits to others, including the plaintiffs, aged 60 to 64.
Paragraph 7 of the Defence
3. The following are the material facts upon which the defen
dant relies in support of the allegation in paragraph 7 of the
defence that the provisions of the Act which establish the wid
owed spouses allowance constitute a reasonable limit pre
scribed by law and demonstrably justified in a free and demo
cratic society, as contemplated by s. 1 of the Charter:
(a) [as in 2.(a) above].
(b) That objective is pressing and substantial in a free and
democratic society.
(c) The provisions constitute a rational and proportionate
means of achieving their objective.
(d) [as in 2.(c) above].
On December 6, 1990 the plaintiffs requested a fur
ther examination of Mr. Hagglund on the particulars.
By letter dated December 10, 1990, counsel for the
defendant asked the plaintiffs to provide a list setting
out the further information required.
In the present application, the plaintiffs seek fur
ther discovery. Counsel for the plaintiffs has instruc
tions to act as agent for the solicitors in the Collins
action and they have the support of the solicitors in
the Granek action. Two alternative requests have
been presented:
i. The Defendant be directed to respond to the questions it
refused to allow its officer to respond to;
ii. Further discovery be directed on the basis of the particu
lars given.
RELEVANT STATUTORY PROVISIONS:
Federal Court Rule 465, Examinations for Discov
ery, provides:
Rule 465.(l) For the purposes of this Rule, a party may be
examined for discovery, as hereinafter in this Rule provided,
(15) Upon examination for discovery otherwise than under
paragraph (5), the individual being questioned shall answer
any question as to any fact within the knowledge or means of
knowledge of the party being examined for discovery that may
prove or tend to prove or disprove or tend to disprove any
unadmitted allegation of fact in any pleading filed by the party
being examined for discovery or the examining party.
(18) The examiner, unless he is a prothonotary or a judge,
has no authority to determine any question arising under
paragraphs (I5) or (16). In any case other than one where a
judge is the examiner, if the party examining is of the view
that the individual being questioned has omitted to answer, or
has answered insufficiently, the party examining may apply by
motion or informally to the Court for an order requiring him to
answer, or to answer further. Where a judge is the examiner,
his ruling on any question shall be deemed to be an order of
the Court.
(19) The Court may, for special reason in an exceptional
case, in its discretion, order a further examination for discov
ery after a party or assignor has been examined for discovery
under this Rule.
PLAINTIFFS' ARGUMENT:
The plaintiffs submit that the defendants must pro
vide the factual basis of its defence to ensure the ful
lest possible discovery particularly where a serious
constitutional challenge is at issue. The defendant has
not pleaded any facts in support of its defences under
subsection 15(2) and section 1 of the Charter and the
applicants submit that they have been placed in a
position of having to guess what these defences will
be due to the generalities in the statement of defence,
the defendant's refusal to answer the questions at
issue, and the general nature of the particulars.
The plaintiffs state that the questions which Mr.
Hagglund, officer for the defendant, has refused to
answer are clearly related to the action and to facts
within his knowledge or means of knowledge which
may prove or tend to disprove the unadmitted allega
tions of fact in the pleadings filed by the parties. The
plaintiffs submit that the defendant's objections are
technical in nature and are based on the way the
questions have been worded rather than their sub
stance. The plaintiffs suggest that it is not reasonable
to expect them to review and interpret the volumi
nous documents produced on discovery, evaluate
their significance, and determine the facts upon
which the defendant is relying. Because these docu
ments are voluminous and complex, the defendant
should he obliged to indicate the specific parts of the
documents or give some definition of the parts of the
production on which it intends to rely.
The plaintiffs submit that further discovery should
be ordered in the light of the further particulars pro
vided by the defendant as set out in exhibit "C" to the
affidavit of Lois Taylor. The plaintiffs state that the
particulars are in effect an amendment to the plead-
ings as they raise matters and issues not suggested in
the original pleadings. Further discovery is, there
fore, required to explore the new issues and to obtain
the information necessary to bring this matter to trial.
The plaintiffs explain that particulars had not been
requested earlier because they had anticipated that the
necessary facts would be provided by the defendant
during the course of discovery. It is suggested that
the new lines of inquiry raised by the particulars pro
vided by the defendant are the following:
i. Inquiries about facts in the Defendant's possession that
suggest widowed spouses are a disadvantaged group;
ii. Inquiries about facts in the Defendant's possession that
suggest that widowed spouses between the ages of 60 and
64 are disadvantaged compared to single and divorced
individuals in the same age group;
iii. Inquiries about facts in the Defendant's possession that
suggest that there is a sound social policy reason for
favouring widows over single and divorced persons and
that these reasons are rational and proportionate to the
objective of ameliorating the conditions of economically
disadvantaged persons aged 60 to 64;
iv. Inquiries about facts in the Defendant's possession that
suggest that its limited economic resources preclude the
extension of similar benefits to the Plaintiffs;
v. Inquiries about documents pertaining to all of the above.
DEFENDANT'S ARGUMENT:
The defendant notes that the plaintiffs did not seek
particulars of the defence until well after the conclu
sion of the examination for discovery of Mr. Hag-
glund and that during the four days of the examina
tion for discovery an extensive examination was
conducted with respect to the objective of the legisla
tion, the characteristics of those assisted, and costs. In
the light of the extensive examination already con
ducted it would be unreasonable and unfair to make
an order at this stage requiring that the questions be
answered.
The defendant submits that questions 1, 2, 3, 5, 6,
7, 8, 9, 10, 11, 14, 19 and 20 [categories (a) and (b)]
demand the production of its planning, argument and
trial strategy, intrude upon matter of solicitor-client
privilege, and are not proper questions. The defen
dant submits that it is not obliged on discovery to dis
close the basis upon which documents were consid
ered relevant and that questions 13, 15, 16 and 17
[category (c)] are, therefore, not proper. The respon
dent submits that question 4 [category (d)] has been
satisfactorily answered in the reply to the demand for
particulars, that question 12 [category (e)] is
improper as it asks the officer of the defendant to
comment on an opinion expressed by someone not a
party, and that question 18 [category (f)] involved an
undertaking given by the defendant which has now
been answered.
The defendant submits that Rule 465(19) sets a
very high threshold and states that the plaintiffs can
establish neither special reason nor an exceptional
case. The defendant draws a distinction between par
ticulars for the purposes of pleadings and particulars
for the purposes of trial, the latter having no bearing
on discovery. Since the particulars were not
requested until after the close of pleadings and five
months after the conclusion of the examination for
discovery of the defendant, they must be taken to be
particulars for trial. Again, the defendant states that
as there has already been extensive examination for
discovery on the subject-matter of the particulars, this
is not a proper case for the Court to exercise its dis
cretion to order a further examination, particularly
when the plaintiffs delayed seeking particulars until
well after the completion of the examination for dis
covery and particularly when many of the objections
in issue were made at an early stage in the discovery.
ANALYSIS:
Rule 465(18)—Order to Compel Answers
In Sperry Corporation v. John Deere Ltd. et al.
(1984), 82 C.P.R. (2d) 1 (F.C.T.D.), at page 10,
McNair J. observed that "[t]he prevailing tendency
today is against restricting the ambit and scope of
examination for discovery." However, the proper
purpose of an examination for discovery is to elicit
facts and, as noted by Heald J.A. in Armstrong Cork
Canada Ltd. et al. v. Domco Industries Ltd. et al.
(1983), 71 C.P.R. (2d) 5 (F.C.A.), at page 7, where he
upheld the reasoning in Champion Packaging Corp.
v. Triumph Packaging Corp., [ 1977] 1 F.C. 191
(C.A.), at pages 192-193, that "the propriety of any
question on discovery must be determined on the
basis of its relevance to the facts pleaded in the state
ment of claim as constituting the cause of action
rather than on its relevance to facts which the plain
tiff proposes to prove to establish the facts constitut
ing its cause of action."
The questions in categories (a), (b) and (d) essen
tially concern what the defendant has termed "reli-
ance questions". In Can-Air Services Ltd. v. British
Aviation Insurance Co. Ltd. (1988), 91 A.R. 258
(C.A.), Côté J.A., for the Court, considered the pro
priety of what he also termed "reliance questions"
such as, [at page 259] "Can you tell sir what facts
you rely on to support that allegation, in paragraph
9(a) of the Statement of Defence?" He concluded that
it is always improper to ask the witness "On what
facts do you rely . .. to support that allegation?" and
[at pages 259-260] he explained the impropriety of
questions phrased in that manner:
"On what facts do you rely ... " does not ask for facts which
the witness knows or can learn. Nor does it ask for facts which
may exist. Instead it makes the witness choose from some set
of facts, discarding those upon which he does not "rely" and
naming only those on which he does "rely".
Because the question demands a selection, it demands a
product of the witness' planning.... The question really asks
how his lawyer will prove the plea. That may well be based on
trial strategy.
Another fundamental rule is that an examination for discov
ery may seek only facts, not law• These questions try to
evade that rule by forcing the witness to think of the law appli
cable or relied upon, then use it to perform some operation
(selecting facts), and then announce the result. The result looks
on the surface like a mere collection of facts, but it really is
not• The witness cannot know what facts will help him in
court until he knows the law. So what facts he relies on must
be based upon his view of the law.
However, "because compendious fact questions may
be permissible in some cases", Côté J.A. allowed the
questioner to elect to have the witness reattend and
answer suitably rephrased purely factual questions to
replace the reliance questions. He gave some indica
tion as to how the questions could be reworded [at
page 262]:
An examining lawyer could properly say "Paragraph 4(b) of
your Statement of Claim alleges that the driver was impaired
by alcohol at the time of the collision. Tell me all the facts
about that impairment which you know or must properly
inform yourself of". There both the pleading and the question
are factual, so the question is proper. If the questioner instead
asks "On what facts do you rely for paragraph 4(b)", the wit
ness' lawyer may properly object.
Many of the questions at issue also relate to the
plaintiffs' attempt to determine the relevance and sig
nificance of some of the 1600 documents produced
on discovery. In Leliever v. Lindson (1977), 3 C.P.C.
245 (Ont. H.C.) Osler J. considered the correctness of
the order of Keith J. of the Divisional Court requiring
the plaintiff to indicate at discovery the specific parts
of the document on which he intends to rely. He
upheld the order, commenting [at page 246]:
While there are few, if any, decided cases upon the point it has
in my view been customary to determine questions of this sort
by having regard to the importance and the complexity of doc
uments, with respect to which it is sought to question parties.
There is no universal test that can be applied to situations of
this sort as obviously there will be cases in which the whole of
a document can be easily seen and comprehended and it may
appear quite obvious that a party intends to rely upon it all.
There will be others in which the documents are so volumi
nous and so complex that the opposing party is quite obviously
entitled to obtain some definition from the plaintiffs of those
parts upon which he intends to reply. [Emphasis added.]
Similarly, in Rule-Bilt Ltd. v. Shenkman Corpora
tion Ltd. et al. (1977), 18 O.R. (2d) 276 (S.C.),
Master Sandler of the Ontario Supreme Court consid
ered whether the question, "On which of your pro
ductions do you rely in support of [an allegation in
the pleadings] and select them out for identification?"
was a proper question. The plaintiff's affidavit on
production contained 744 pages with about 10 items
per page. Master Sandler referred [at page 281] to the
well settled principle that "discovery may be had for
the purposes of (a) supporting a party's own case; (b)
destroying his opponent's case; (c) finding out what
case the party examining has to meet and the facts
relied on in support of that case for the purpose of
limiting the generality of the pleadings and finding
what the issues are so as to meet that case, and to
avoid being taken by surprise at the trial; (d) obtain
admissions, and (e) limiting the issues." "Keeping in
mind the number and complexity of the plaintiff's
productions in this case", and based on the following
reasoning [at page 282] he held in favour of the
defendant:
The plaintiff in this case, in preparing its affidavit on pro
duction, had to decide which of its documents related to any of
the matters in question in the action, under Rule 347 [am.
O.Reg. 569/75, s. 4]. The plaintiff is far more familiar with its
productions and why they were produced and their signifi
cance, than the defendant. In order for the defendant to accom
plish the various purposes of discovery, as above set out, it
must have the plaintiff select out, isolate and identify all its
productions relating to the various issues in this law suit, the
allegations in the pleadings and the various events in the com
plex history of the dealings between the plaintiff and the
defendant.
While it is true that it is improper to ask on discovery, "On
what evidence do you rely in support of your allegations?", the
line of demarcation between disclosure of fact and evidence is
often hazy, and when in doubt, the resolution must be in favour
of fact disclosure. The selection, identification and isolation of
a party's own productions as to the various allegations, issues,
and events, in the litigation, is more in the nature of fact dis
closure than evidence disclosure. [Emphasis added.]
Finally, in Beloit Canada Ltée/Ltd. et al. v. Valmet
OY (1981), 60 C.P.R. (2d) 145 (F.C.T.D.), Walsh J.,
at page 155, stated that "while up to a point docu
ments produced speak for themselves it is not unrea
sonable for plaintiffs to ask the significance of some
of these" and, at page 156, "Introduction of docu
ments without provision as to what portions of them
are actually being relied is not desirable." At the risk
of lengthening discovery, he held that the questions
should be answered. He re-affirmed, however, at
page 149, that although the Federal Court Rules for
discovery are very broad, the opposing party is not
required "to disclose on discovery all the evidence on
which it will rely at the trial, but only information
within the knowledge or means of knowledge of the
party being examined."
Here, we are dealing with a significant question
concerning the constitutional validity of certain pro
visions of the Old Age Security Act. Clearly, the doc
uments produced by the defendant to support its posi
tion are voluminous and, in this instance, it is
appropriate that the defendant give the plaintiffs
some definition of those parts upon which she
intends to rely. In Can-Air, Côté J.A., at page 261,
admitted that the distinction between facts and evi
dence is sometimes blurred, but he criticized the rea
soning in Leliever on the basis that "a sometimes-
blurred line is still a line." However, in keeping with
the concerns expressed by Walsh J. in Ethicon Inc. et
al. v. Cyanamid of Canada Ltd. (1977), 35 C.P.R.
(2d) 126 (F.C.T.D.), at page 133, that "despite the
adversary system the Rules of Court should never be
so applied, when the Court has discretion in connec
tion with their application, as to prevent the Court
from having full access to all information which is
relevant and pertinent to enable it to arrive at a just
decision", the applicants here should be given an
opportunity to rephrase their "reliance" questions so
as to conform with the examples proposed by Côté
J.A. in Can-Air.
I will allow the plaintiffs' request to the extent that
the plaintiffs are able to properly rephrase the ques
tions in categories (a) and (b). However, Côté J.A. in
Can-Air also observed, at page 261, that it was
impossible to swear which facts support a denial
because "[i]t is logically impossible to give particu
lars of a negative, such as an event which never
occurred." On this basis, I am of the opinion that
questions 8 and ll are offensive and need not be
answered by the defendant. As well, for the reasons
set out in Can-Air, question 20 and the questions in
category (c) are inappropriate and need not be
answered. Question 12 [category (e)] is also inappro
priate on this basis and for the further reason that it
seeks to have the defendant's officer explain his disa
greement with an observation made by someone not a
party to the action. Finally it is my opinion that ques
tion 4 [category (d)] has been sufficiently answered
by the defendant in the particulars.
Rule 465(19)—Order for Further Discovery
The plaintiffs' request for an order for further dis
covery under Rule 465(19) should be denied. In
Imperial Marine Industries Ltd. v. Fireman's Fund
Insurance Co., [ 1977] 1 F.C. 747 (T.D.), at page 748,
Mahoney J. observed that the wording of Rule
465(19) is "strong language" and that "[t]he party
seeking further examination for discovery must
establish that it does so for `special reason in an
exceptional case' before the Court is called upon to
exercise its discretion." While Heald J.A. held in
Johnson (S.C.) and Son Ltd. v. Pic Corp. et al.
(1975), 19 C.P.R. (2d) 26 (F.C.T.D.), at page 28, that
the written requests for particulars and the replies
thereunder "must, of necessity be incorporated into
and become a part of the pleadings in the action", the
defendant's reply to the demand for particulars in this
instance has not raised new issues such that a further
examination for discovery is warranted.
Cattanach J. noted in Geo Vann, Inc. v. N.L. Indus
tries, Inc. (1984), 1 C.P.R. (3d) 277 (F.C.T.D.), at
page 278, that "while para. (19) of Rule 465 does
permit the court for special reason and in an excep
tional circumstance in its discretion to so order [for
the examination for discovery] it is a provision infre
quently used." While, in Sperry McNair J. deter
mined, at page 9, that on the facts of that case the
"balance of probability weighs in favour of a further
examination of someone knowledgeable" and, at
page 10, that "the ends of justice would be better
served" in that case by requiring the plaintiff to pro
duce its officer for further examination for discovery
under Rule 465(19), here, in the light of the delay in
requesting particulars, the extensive discovery that
has taken place to date, and my conclusion that no
new issues have been raised in the particulars, I find
that the plaintiffs have not made out special reasons
to warrant this exceptional remedy.
CONCLUSION:
The matter is therefore disposed of on the basis
stated herein and I would invite counsel to prepare an
order for my signature in accordance with these rea
sons. Costs in the cause.
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