Mills et al. v. Gibbs et al., (2008) 315 Sask.R. 35 (QB)

• Judge: Gabrielson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 13, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 315 Sask.R. 35 (QB);2008 SKQB 124

Mills v. Gibbs (2008), 315 Sask.R. 35 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. MR.074

Alice Mills and Alice Mills as personal representative for the Estate of Eileen Lipsett (plaintiffs) v. Lou Gibbs, Garry Munro, Virginia Munro, William Terrence Johnston, Kenneth Wayne Noble, 101002490 Saskatchewan Ltd. (defendants)

(2002 Q.B.G. No. 1615; 2008 SKQB 124)

Indexed As: Mills et al. v. Gibbs et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Gabrielson, J.

March 13, 2008.

Summary:

The plaintiffs applied pursuant to rule 231 of the Queen's Bench Rules to have the defence of the defendant, 101002490 Saskatchewan Ltd., struck for failure to answer questions at an examination for discovery. Alternatively, the plaintiffs sought an order that the proper officer of the defendant corporation be required to answer the questions asked of him.

The Saskatchewan Court of Queen's Bench held that rule 231 was not invoked. The court ordered the proper officer of the defendant corporation to answer certain questions in the list submitted by the plaintiffs.

Practice - Topic 2232

Pleadings - Striking out pleadings - Grounds - Noncompliance with discovery rules - The plaintiffs and the defendant corporation agreed that rather than taking out an appointment for the examination for discovery of Munro as the proper officer of the defendant corporation, written questions would be submitted to Munro and the written responses would be considered binding on the defendant corporation as if an examination for discovery had been held - Answers were provided to only 54 of the 140 questions asked - The plaintiffs applied pursuant to Queen's Bench Rule 231 to have the defence of the defendant corporation struck for failure to answer questions at an examination for discovery - The Saskatchewan Court of Queen's Bench held that the agreement between the parties as to the examination by written questions was an informal arrangement which did not invoke the provisions of rule 231, but rather was intended to constitute admissions against interest by the proper officer on behalf of the defendant corporation - The court ordered the proper officer of the defendant corporation to answer certain questions in the list submitted by the plaintiffs - See paragraphs 4 to 5.

Practice - Topic 4260

Discovery - Examination - Range of - Matters covered in prior examination - [See first Practice - Topic 4265 ].

Practice - Topic 4263

Discovery - Examination - Range of - Discovery or production of documents on examination - [See first Practice - Topic 4265 ].

Practice - Topic 4265

Discovery - Examination - Range of - Officer of corporation - The plaintiffs and the defendant corporation agreed that rather than taking out an appointment for the examination for discovery of Munro as the proper officer of the defendant corporation, written questions would be submitted to Munro and the written responses would be considered binding on the defendant corporation as if an examination for discovery had been held - Answers were provided to only 54 of the 140 questions asked - Two reasons given for not answering the questions were that answers to the questions had been provided during previous examinations for discovery of the remaining defendants and, in the case of documents requested, any documents in the possession and/or control of the defendant corporation had been previously disclosed when the statement as to documents was filed - The Saskatchewan Court of Queen's Bench stated that "The fact that one of the other defendants may have provided an answer to the same or a similar question does not mean that the defendant corporation is bound by this answer unless the proper officer for the defendant corporation either adopts the answer as part of the examination for discovery of the defendant corporation or in some way answers the question himself. Accordingly, I am satisfied that the proper officer must either answer those questions or adopt the specific answer given by one of the other defendants in their examination for discovery. The same reasoning will apply to the response regarding documents being previously disclosed" - See paragraph 6.

Practice - Topic 4265

Discovery - Examination - Range of - Officer of corporation - The plaintiffs and the defendant corporation agreed that rather than taking out an appointment for the examination for discovery of Munro as the proper officer of the defendant corporation, written questions would be submitted to Munro and the written responses would be considered binding on the defendant corporation as if an examination for discovery had been held - Answers were provided to only 54 of the 140 questions asked - One reason given for not answering questions was that the answers were already within the knowledge of the plaintiffs - The Saskatchewan Court of Queen's Bench stated that "While the answer to any specific question may very well be within the knowledge of the plaintiffs, the plaintiffs are entitled to know specifically what the defendant corporation's position is in respect to each question. Accordingly, the plaintiffs are entitled to a specific response in respect to such questions" - See paragraph 7.

Cases Noticed:

Steier et al. v. University Hospital Board et al., [1988] 4 W.W.R. 303; 67 Sask.R. 81 (C.A.), refd to. [para. 8].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 231 [para. 1].

Counsel:

Mervin C. Phillips, for the plaintiffs;

Patrick A. Kelly, Q.C., for the defendant, 101002490 Saskatchewan Ltd.

This application was heard before Gabrielson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on March 13, 2008.