New Brunswick Telephone Co. v. John Maryon International Ltd. et al., (1979) 27 N.B.R.(2d) 1 (QB)

• Judge: Stratton, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 28, 1979
• Jurisdiction: New Brunswick
• Citations: (1979), 27 N.B.R.(2d) 1 (QB)

NBTel v. Maryon Intl. Ltd. (1979), 27 N.B.R.(2d) 1 (QB);

    27 R.N.-B.(2e) 1; 60 A.P.R. 1

MLB headnote and full text

Sommaire et texte intégral

New Brunswick Telephone Company Limited v. John Maryon International Limited, John Maryon and Partners Limited and Dineen Construction (Atlantic) Limited; Maryon v. New Brunswick Telephone Company Limited

Indexed As: New Brunswick Telephone Co. v. John Maryon International Ltd. et al.

Répertorié: New Brunswick Telephone Co. v. John Maryon International Ltd. et al.

New Brunswick Court of Queen's Bench

Stratton, J.

August 14, 1979.

Summary:

Résumé:

This case arose out of the defendants' application to determine the propriety of certain questions put to an officer of the plaintiff on examination for discovery. The officer objected to and refused to answer the questions on the grounds that they called for the disclosure of privileged material and called for opinion.

The New Brunswick Court of Queen's Bench, allowed the application and ruled on the propriety of the questions after discussing the questions of privilege and opinion on examination for discovery.

Evidence - Topic 4106

Witnesses - Privilege - Waiver of privilege - The New Brunswick Court of Queen's Bench, held that a client could waive a privilege, either totally or partially - The Court of Queen's Bench held that the waiver of privilege must be clear - See paragraph 13.

Practice - Topic 4152

Discovery - General principles - Purpose of discovery - The New Brunswick Court of Queen's Bench, generally discussed the purpose of examination for discovery - See paragraph 24.

Practice - Topic 4182

Discovery - Examination - Objections to questions - Dismissal of action for refusal to answer - On discovery an officer of the plaintiff objected to certain questions and the defendant brought an action for dismissal of the plaintiff's action - The New Brunswick Court of Queen's Bench, held that the application for dismissal was premature, where a judge had not previously ruled on the witness' objections - See paragraph 1.

Practice - Topic 4256

Discovery - Examination - Range of examination - Opinion - The New Brunswick Court of Queen's Bench, held that questions which call for an expert opinion or an admission of fact, the truth of which is a matter of opinion, are not admissible - The Court of Queen's Bench noted two exceptions to the rule: where the sole issue in the action is the value of property and where a professional man is being sued for negligence - See paragraphs 18 to 21.

Practice - Topic 4257

Discovery - Examination - Range of - Cross-examination - The New Brunswick Court of Queen's Bench, held that generally an examination for discovery is not a cross-examination - See paragraph 24.

Practice - Topic 4261

Discovery - Examination - Range of - Privileged topics or communications - The New Brunswick Court of Queen's Bench, held that facts learned from privileged documents may be elicited from a witness on examination for discovery, provided that the facts are relevant to the issue - See paragraphs 14 to 17.

Cases Noticed:

Hanson v. The Gleaner Limited (1925), 52 N.B.R. 166, appld. [para. 1].

Saint John Shipbuilding and Drydock Co. v. Craig (1968), 1 N.B.R.(2d) 187, appld. [para. 1].

Central Trust Company of Canada v. New Brunswick Electric Power Commission (1973), 9 N.B.R.(2d) 153; 1 A.P.R. 153, appld. [para. 1].

The New Brunswick Telephone Company Limited v. John Maryon International Ltd. et al. (1978), 22 N.B.R.(2d) 131; 39 A.P.R. 131, ref'd to. [para. 9].

Proctor v. Smiles (1886), 55 L.J.Q.B. 527, appld. [para. 13].

Lyell v. Kennedy (No. 3), 27 Ch.D. 1, appld. [para. 13].

R. v. Prentice (1914), 23 C.C.C. 436, appld. [para. 13].

Hurley v. The King, [1927] S.C.R. 529, appld. [para. 13].

George Dolan Ltd. v. Blackburn Robson Coates & Co. et al., [1972] 3 All E.R. 959, appld. [para. 13].

Western Canada Investment Co. Ltd. v. McDiarmid, [1922] 1 W.W.R. 257, appld. [para. 13].

James et al. v. Maloney, [1973] 1 O.R. 656, dist. [para. 13].

Durall Construction Ltd. v. H. J. O'Connell, [1973] 3 O.R. 59, dist. [para. 13].

Lyell v. Kennedy (No. 2) (1883), 9 App. Cas. 81, appld. [para. 15].

Cook v. Cook et al., [1947] O.R. 297, appld. [para. 15].

Rubinoff v. Newton, [1967] 1 O.R. 402, dist. [para. 18].

West Coast Transmission Company Limited v. Canadian Phoenix Steel & Pile Ltd., [1971] 1 W.W.R. 241, dist. [para. 18].

Re Silver Hill Realty Holdings Ltd. and The Minister of Highways For Ontario, [1968] 1 O.R. 357, dist. [para. 18].

Weisberg v. Kerbel, [1961] O.W.N. 209, appld. [para. 21].

Graydon v. Graydon (1921), 67 D.L.R. 116, appld. [para. 24].

Authors and Works Noticed:

Phipson on Evidence (12th Ed.), paras. 587-597 [para. 13].

Sopinka and Lederman, The Law of Evidence in Civil Cases, pp. 181-183 [para. 13].

Williston and Rolls, The Law of Civil Procedure, vol. 2, pp. 816 [para. 19]; 818 [para. 20]; 829 [para. 16].

Counsel:

Donald M. Gillis, Q.C., John P. Barry, Q.C., and Thomas G. O'Neil, for The New Brunswick Telephone Company, Limited;

Ian W. Outerbridge, Q.C., Horace B. Trites, Q.C., and H. Myron Mitton, for John Maryon International Limited, John Maryon and Partners Limited and John Maryon;

Wayne R. Chapman, for Dineen Construction (Atlantic) Limited.

This case was heard on May 28, 1979, at Moncton, N.B., in chambers before STRATTON, J., of the New Brunswick Supreme Court, Queen's Bench Division, who delivered the following judgment on August 14, 1979: