Merchants Consolidated Ltd. v. Henderson-McIvor Foods Ltd. et al., (1991) 73 Man.R.(2d) 120 (CA)

• Judge: Scott, C.J.M., Philp and Twaddle, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 11, 1991
• Jurisdiction: Manitoba
• Citations: (1991), 73 Man.R.(2d) 120 (CA)

Merchants v. Henderson-McIvor (1991), 73 Man.R.(2d) 120 (CA);

    3 W.A.C. 120

MLB headnote and full text

Merchants Consolidated Limited (plaintiff/respondent) v. Henderson-McIvor Foods Ltd., trading as Family Fare Store No. 6 and Family Fare Store No. 14, the said Family Fare Store No. 6, the said Family Fare Store No. 14, Theodore Froese and Irene Froese (defendants/appellants)

(Suit No. 146/91)

Indexed As: Merchants Consolidated Ltd. v. Henderson-McIvor Foods Ltd. et al.

Manitoba Court of Appeal

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

June 27, 1991.

Summary:

The defendants proposed to examine for discovery the former chief executive officer of the plaintiff. The plaintiff applied for an order that the vice-president of its duly appointed receiver/manager was the proper officer to be produced for discovery.

The Manitoba Court of Queen's Bench, in a decision reported in 72 Man.R.(2d) 129, allowed the plaintiff's application. The defendants appealed.

The Manitoba Court of Appeal allowed the appeal.

Practice - Topic 4243

Discovery - Examination - Persons who may be examined - Corporations - Officer of - The Manitoba Court of Appeal affirmed that the plaintiff corporation's choice of the proper officer should be examined for discovery by the defendants, contrary to the defendants' wishes, where that same officer had already been ordered to be produced for discovery in similar actions by the plaintiff - The court held that the defendants' choice of examining the plaintiff's former chief executive officer would expose the plaintiff to the sanction of dismissal of its action should its former officer not appear or answer questions.

Practice - Topic 4243

Discovery - Examination - Persons who may be examined - Corporations - Designation of officer of - The Manitoba Court of Appeal stated that it did not agree that a party's right to select the officer of its choice (for discovery) can be restricted solely on the ground that there is a more suitable officer available - The unsuitability of the officer selected by an examining party may be a ground for denying that party an order for a second examination - And, if the selection results in unnecessary costs, it may be a ground for ordering that party to pay them - The court held that the examining party had the right to select whichever officer or employee he wishes so long as the choice is neither unreasonable nor an abuse of process - See paragraphs 8 to 9.

Cases Noticed:

Kent Drugs Limited v. Kronson and 61462 Manitoba Ltd., [1987] 1 W.W.R. 24; 43 Man.R.(2d) 261, refd to. [para. 1].

Statutes Noticed:

Rules of Court (Man.), Queen's Bench Rules, rule 34.14(1) [para. 11].

Rules of Court (Man.), Queen's Bench Rules, rule 308 [para. 11].

Counsel:

M.A. Thomson, for the appellants;

S.Z. Raber and D.J. Kroft, for the respondent.

This appeal was heard before Scott, C.J.M., Philp and Twaddle, JJ.A., of the Manitoba Court of Appeal on June 11, 1991. The decision of the Court of Appeal was delivered by Twaddle, J.A., on June 27, 1991.