Kent Drugs Ltd. v. Kronson and 61462 Manitoba Ltd., (1986) 43 Man.R.(2d) 261 (CA)

• Judge: Monnin, C.J.M., Philp and Twaddle, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 05, 1986
• Jurisdiction: Manitoba
• Citations: (1986), 43 Man.R.(2d) 261 (CA)

Kent Drugs Ltd. v. Kronson (1986), 43 Man.R.(2d) 261 (CA)

MLB headnote and full text

Kent Drugs Limited v. Kronson, Kronson, 61462 Manitoba Ltd., carrying on business under the firm name and style of Midwest Geriatric Services and the said 61462 Manitoba Ltd.

(Suit No. 497/85)

Indexed As: Kent Drugs Ltd. v. Kronson and 61462 Manitoba Ltd.

Manitoba Court of Appeal

Monnin, C.J.M., Philp and Twaddle, JJ.A.

October 6, 1986.

Summary:

The plaintiff Kent Drugs requested the corporate defendant to produce a particular person to be examined as its officer for discovery. A Referee ordered that the requested person be examined. The defendant corporation appealed.

The Manitoba Court of Queen's Bench, in a decision unreported in this series of reports, dismissed the appeal. The defendant corporation appealed.

The Manitoba Court of Appeal dismissed the appeal.

Practice - Topic 5

Nature and interpretation of practice rules - The Manitoba Court of Appeal stated that the procedures prescribed by the Queen's Bench Rules do not confer substantive rights which must be construed strictly - The rules must be construed with their ultimate purpose in mind - See paragraph 13.

Practice - Topic 4243

Discovery - Examination - Persons who may be examined - Corporations - Designation of officer of - The Manitoba Court of Appeal held that the general manager of the defendant corporation, who was responsible for contracts with clients, was an "officer" within the meaning of Queen's Bench Rule 286(1) for discovery purposes, in an action for damages for breach of fiduciary duty and improper competition - The court held that the termination of the manager's employment before discovery did not exclude him from being selected for examination, but did limit the use to which his examination might be put, since his examination could be used as evidence only with leave of the trial judge - See paragraphs 7, 17.

Practice - Topic 4243

Discovery - Examination - Persons who may be examined - Corporations - Designation of officer of - The Manitoba Court of Appeal stated that the practice in Manitoba was for the examining party to designate the officer of an adverse corporate party whom the examining party selected for examination - The court held, however, that the right of designation was not absolute - The right did not enable a party to abuse the process of the court or to make a selection which was unreasonable in the circumstances of the case - See paragraphs 8, 14 to 15.

Words and Phrases

Officer - The Manitoba Court of Appeal discussed the meaning of the word "officer" as found in Queen's Bench Rule 286(1) - See paragraphs 5 to 7.

Cases Noticed:

Dixon v. Winnipeg Electric Ry. Co. (1895), 10 Man.R. 660 (Q.B.), consd. [para. 5].

Gordanier v. Can. Nor. Ry. Co. (1904), 15 Man.R. 1, consd. [para. 5].

Shaw v. Winnipeg (City) (1910), 19 Man.R. 551, consd. [para. 5].

Neon Products Ltd. v. Wiebe and Sports Shop Ltd., [1974] 3 W.W.R. 567, consd. [para. 5].

Bell v. Klein (1954), 13 W.W.R.(N.S.) 193 (B.C.C.A.), consd. [para. 6].

de Jong v. Milwaukee Insurance Co. (1965), 52 W.W.R.(N.S.) 371 (B.C. S.C.), consd. [para. 6].

College Housing Co-op Ltd. v. Baxter Student Housing Ltd., [1975] 3 W.W.R. 379 (Man. Q.B.), refd to. [para. 9].

Dodds v. Selkirk General Hospital (1981), 24 C.P.C. 199 (Man. Ref.), refd to. [para. 10].

Bassett Furniture v. Sargent Color Television (1981), 12 Man.R.(2d) 185, refd to. [para. 11].

Dyson v. R.U. Dyson Co. Ltd., [1962] O.W.N. 25, refd to. [para. 12].

Statutes Noticed:

Rules of Court (Man.), Queen's Bench Rules, Rule 286(1) [paras. 5-6, 9].

Queen's Bench Act, R.S.M. 1970, c. C280; C.C.S.M., c. C-280, sect. 103 (1)(j) [para. 13].

Counsel:

E.A.D. MacInnes, Q.C., for the appellants;

P.B. Forsyth, for the respondent.

This appeal was heard before Monnin, C.J.M, Philp and Twaddle, JJ.A., of the Manitoba Court of Appeal on September 5, 1986. The decision of the Court of Appeal was delivered on October 6, 1986 by Twaddle, J.A.