Burke Estate et al. v. Royal & SunAlliance Insurance Co. of Canada, (2014) 429 N.B.R.(2d) 381 (TD)

Judge:Rideout, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:December 10, 2014
Jurisdiction:New Brunswick
Citations:(2014), 429 N.B.R.(2d) 381 (TD);2014 NBQB 271
 
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Burke Estate v. Royal & Sun (2014), 429 N.B.R.(2d) 381 (TD);

    429 R.N.-B.(2e) 381; 1119 A.P.R. 381

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Temp. Cite: [2014] N.B.R.(2d) TBEd. DE.023

Renvoi temp.: [2014] N.B.R.(2d) TBEd. DE.023

Estate of Michael Burke, as represented by Harold Vernon Hall, and 1021256 Ontario Inc. (plaintiffs) v. Royal & SunAlliance Insurance Company of Canada (defendants)

(MC-557-02; 2014 NBQB 271; 2014 NBBR 271)

Indexed As: Burke Estate et al. v. Royal & SunAlliance Insurance Co. of Canada

Répertorié: Burke Estate et al. v. Royal & SunAlliance Insurance Co. of Canada

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

December 16, 2014.

Summary:

Résumé:

Burke was seriously injured in a motor vehicle accident in 2001. In 2002, Burke commenced an action against Royal & SunAlliance Insurance Co. of Canada (Royal) under a S.E.F. 44 endorsement of a policy of insurance issued to Burke. Burke was now deceased. Royal brought a motion to examine Esther Hall for discovery under rule 32.10 of the Rules of Court. Royal said that Hall had knowledge of the evidentiary basis for the claim set forth in the Further Amended Statement of Claim filed February 21, 2014, described as "costs of third party services, including past maintenance, nursing and care". Royal said that it had been unable to obtain the information from other persons or Hall, other than an offer by Hall to answer written questions.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion.

Practice - Topic 4175.1

Discovery - Examination - General - Oral v. written examination - [See Practice - Topic 4230 ].

Practice - Topic 4230

Discovery - Examination - Persons who may be examined - Nonparties - Burke was seriously injured in a motor vehicle accident in 2001 - In 2002, Burke commenced an action against Royal & SunAlliance Insurance Co. of Canada (Royal) under a S.E.F. 44 endorsement of a policy of insurance issued to Burke - Burke was now deceased - Royal brought a motion to examine Esther Hall for discovery under rule 32.10 of the Rules of Court - Royal said that Hall had knowledge of the evidentiary basis for the claim set forth in the Further Amended Statement of Claim filed February 21, 2014, described as "costs of third party services, including past maintenance, nursing and care" - Royal said that it had been unable to obtain the information from other persons or Hall, other than an offer by Hall to answer written questions, which was a cumbersome and impractical procedure which would be unduly time consuming and overly costly - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion - Royal had not satisfied the requirement of rule 32.10 that it had been unable to obtain the information relevant to material issues in the action - Hall had agreed to answer questions put to her in writing - That was sufficient for the motion to be denied - The court stated that "in the event her answers are not fulsome, it is possible a court would then find Rule 32.10 requirements have been met and a discovery is appropriate".

Procédure - Cote 4175.1

Enquête préalable - Interrogatoire - Généralités - Interrogatoire oral ou interrogatoire écrit - [Voir Practice - Topic 4175.1 ].

Procédure - Cote 4230

Enquête préalable - Interrogatoire - Personnes susceptibles d'être interrogées - Non-parties - [Voir Practice - Topic 4230 ].

Cases Noticed:

Stewart v. Cam-Steam Ltd. and Malenfant (1988), 92 N.B.R.(2d) 85; 236 A.P.R. 85 (T.D.), refd to. [para. 10].

King and King v. Larlee (1984), 54 N.B.R.(2d) 32; 140 A.P.R. 32 (T.D.), refd to. [para. 10].

Fougere v. Acadia Drug (1969) Ltd. (1993), 131 N.B.R.(2d) 158; 333 A.P.R. 158 (T.D.), refd to. [para. 11].

Bourque v. LeBlanc (2002), 253 N.B.R.(2d) 231; 660 A.P.R. 231; 2002 NBCA 78, refd to. [para. 12].

Cor-Mar Ltd. et al. v. Aldéo's Electric Ltd. et al. (2009), 345 N.B.R.(2d) 28; 889 A.P.R. 28; 2009 NBQB 153, refd to. [para. 13].

Statutes Noticed:

Rules of Court (N.B.), rule 32.10 [para. 9].

Counsel:

Avocats:

Lee McKeigan-Dempsey, on behalf of the plaintiffs/ respondents;

Terrence L.S. Teed, Q.C., on behalf of the defendants/moving party.

This motion was heard on December 10, 2014, before Rideout, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following decision on December 16, 2014.

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