International Minerals & Chemical Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al., (1992) 107 Sask.R. 185 (QB)

• Judge: Halvorson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 18, 1992
• Jurisdiction: Saskatchewan
• Citations: (1992), 107 Sask.R. 185 (QB);1992 CanLII 7884 (SK QB);[1992] SJ No 574 (QL);107 Sask R 185

Intl. Minerals v. Commonwealth Ins. (1992), 107 Sask.R. 185 (QB)

MLB headnote and full text

International Minerals & Chemical Corporation (Canada) Limited and International Minerals & Chemical Corporation (plaintiffs) v. Commonwealth Insurance Company, Reandex Home International Limited, Simcoe & Erie General Insurance Company, Simcoe Erie Group, St. Paul Fire and Marine Insurance Company, The St. Paul Fire and Marine Insurance Company, Gerling Global General Insurance Company, Halifax Insurance Company, The Halifax Insurance Company, Chubb Insurance Company, Chubb Insurance Company of Canada, Cigna Insurance Company of Canada, Royal Insurance Company of Canada, American Home Assurance Company, Reed Stenhouse (Insurance) Limited, Reed Stenhouse Companies Limited and Reed Stenhouse Limited/Reed Stenhouse Limitée, The Contingency Insurance Company Limited, Gan incendie accidents compagnie française d'assurances, New Rotterdam Insurance Company, Security Insurance Company of Hartford (defendants) and Reed Stenhouse (Insurance) Limited, Reed Stenhouse Companies Limited and Reed Stenhouse Limited/Reed Stenhouse Limitée (third parties)

(Fiat #17)

(1986 Q.B. No. 5017)

Indexed As: International Minerals & Chemical Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al.

Saskatchewan Court of Queen's Bench

Halvorson, J.

Judicial District of Regina

November 18, 1992.

Summary:

The defendants in a complex litigation applied to examine former employees of the plaintiff and to examine a second officer of the plaintiff.

The Saskatchewan Court of Queen's Bench refused to order the examination of nonparty former employees, but permitted the defend­ant to examine another officer of the plain­tiff.

Practice - Topic 4227

Discovery - Persons who may be exam­ined - Experts - The defendant applied to examine nonparty former employees of the plaintiff, one of whom was currently "an expert engaged by the plaintiff" and excluded from examination under rule 222A(1) - The defendant proposed to examine him on matters outside his expert capacity - The Saskatchewan Court of Queen's Bench dismissed the application, because the expert would be put in the position of trying to distinguish between facts he had as an employee of the plain­tiff and privileged information he had learned in his capacity as an expert in the litigation - See paragraphs 28 to 31.

Practice - Topic 4230

Discovery - Examination - Persons who may be examined - Nonparties - In an insurance action arising out of the flooding of a mine the mine's officers were forced to give undertakings and consult former employees, who were involved at the time - The defendant submitted that the pro­cedure was cumbersome and applied to examine the former employees - The Saskatchewan Court of Queen's Bench dismissed the application, stating that, although the procedure was cumbersome, it worked - The court set out eight condi­tions which must be met to allow examin­ation of a nonparty - See paragraphs 3 to 31.

Practice - Topic 4243

Discovery - Examination - Persons who may be examined - Corporations - Officers of - Second officer - The de­fendant applied to examine a second officer of the plaintiff, because the officer examined lacked personal knowledge of the facts and was obliged to give under­takings and provide responses, particularly about crucial financial matters - The de­fendant submitted that the procedure was cumbersome and wanted to examine the officer from whom the examined officer sought his information - The Saskatchewan Court of Queen's Bench allowed the application, not because the examination of the first officer was unsat­isfactory (normally a prerequisite to the order), but because examining the second officer would be more practical - See paragraphs 34 to 49.

Cases Noticed:

Dalewood Investments Ltd. et al. v. Canada Trust Co. et al. (1986), 9 C.P.C.(2d) 129 (Ont. H.C.), appld. [para. 11].

Weiszman v. 491 Lawrence Avenue West Ltd. et al. (1985), 5 C.P.C.(2d) 160 (Ont. H.C.), appld. [para. 11].

Famous Players Development Corp. et al. v. Central Capital Corp. et al. (1991), 53 O.A.C. 185; 6 O.R.(3d) 765 (Div. Ct.), appld. [para. 11].

Aintree Investments Ltd. et al. v. West Vancouver (District) et al. (1977), 82 D.L.R.(3d) 502; 5 B.C.L.R. 216 (S.C.), appld. [para. 12].

Lloyds Bank Canada v. Canada Life As­surance Co. and Confederation Life Insurance Co. (1991), 3 C.P.C.(3d) 279 (Ont. Gen. Div.), appld. [para. 14].

Scott v. Verma and South Saskatchewan Hospital Centre (1989), 78 Sask.R. 139 (Q.B.), appld. [para. 15].

Carleton Condominium Corp. No. 25 v. Shenkman Corp. et al. (1986), 9 C.P.C.(2d) 233 (Ont. Master), appld. [para. 15].

D'Amore Construction (Windsor) Ltd. v. Ontario et al. (1986), 12 C.P.C.(2d) 178 (Ont. H.C.), appld. [para. 15].

Westcoast Transmission Co. v. Interprovincial Steel and Pipe Corp. et al. (1984), 49 C.P.C. 101; 59 B.C.L.R. 43 (S.C.), appld. [paras. 16, 36].

Rieger et al. v. Burgess et al. (No. 2), [1992] 5 W.W.R. 425; 103 Sask.R. 208 (Q.B.), appld. [para. 23].

Perley v. Pasqua Hospital et al. (1979), 13 C.P.C. 12 (Sask. Q.B.), consd. [para. 41].

Young v. Canadian Pacific Railway, [1927] 2 W.W.R. 467; 21 Sask. L.R. 668 (K.B.), consd. [para. 41].

Harvie v. Canadian Pacific Railway Co. and Hurst Engineering & Construction Co., [1928] 1 W.W.R. 187; [1928] 1 D.L.R. 696; 22 Sask. L.R. 361 (C.A.), consd. [para. 41].

Rennie v. Elma (Rural Municipality), [1946] 1 W.W.R. 411 (Sask. C.A.), consd. [para. 41].

Statutes Noticed:

Interprovincial Subpoena Act, R.S.S. 1978, c. I-12.1 (Supp.), generally [para. 32].

Queen's Bench Rules, rule 222A [para. 4]; rule 223(4) [para. 35].

Counsel:

B.A. Tough and J.A. Prestage, for the plaintiffs;

W.M. Holburn, Q.C., R.G. Payne and L.D. Andrychuk, for the defendant, primary insurers;

G.L. Gerrand, Q.C., for the defendant, excess insurer, Cigna Insurance Co. of Canada;

C.M. Ozirny, for the former employees.

This matter was heard at Regina, Saskatchewan, before Halvorson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on November 18, 1992.