A-658-97
The Honourable Mr. Justice W. D. Parker, Commissioner and The Attorney General of Canada (Appellants)
v.
Sinclair Stevens (Respondent)
Indexed as: Stevensv. Canada (Commissioner, Commission of Inquiry) (C.A.)
Court of Appeal, Stone, Linden and Robertson JJ.A. "Toronto, April 21 and 22; Ottawa, June 5, 1998.
Practice — Parties — Joinder — Commissioner of Commission of inquiry not necessary party to action challenging Commission's Report — Respondent seeking setting aside of Report and its removal into Court; no remedy sought against Commissioner personally — Fact evidence of Commissioner may be needed at trial not sufficient reason for requiring him to remain as party defendant — Possibility, under Federal Court RR. 238, 233 (concerning non-parties), of obtaining Commissioner's evidence, production of relevant documents in his possession even if not party.
Inquiries — Practice — Commission of Inquiry into Conflict of Interest Allegations concerning Hon. Sinclair Stevens — Commissioner not necessary party to action challenging Commission's Report — Respondent seeking setting aside of Report and its removal into Court; no remedy sought against Commissioner personally — Inquiry ended long ago — Fact evidence of Commissioner may be needed at trial not sufficient reason for requiring him to remain as party defendant — Possibility, under Federal Court Rules, of obtaining Commissioner's evidence, production of relevant documents in his possession even if not party.
In the context of an action attacking the Report of the Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens, presided over by Commissioner Parker, the appellant Attorney General of Canada presented a motion to strike the Commissioner as a party defendant pursuant to Rule 1716(2) of the former Federal Court Rules on the ground that he was not a necessary party to the action. The respondent alleges, inter alia, that there has been a breach of the principles of natural justice as a result of Commission counsel's participation in the preparation of the Commissioner's report and influencing the determination by the Commissioner of certain fundamental issues, including the definition of conflict of interest. There had been an understanding that Commission counsel, who had taken an adversarial role in the proceedings, would not be partici-pating in the drafting or preparation of the report. The Motions Judge, having determined that the appellant, Parker, had not ceased to be a necessary and proper party and that he should not be removed from the action, dismissed the application. The issue was whether the Commissioner was a necessary party defendant to respondent's action challenging the Commission's Report.
Held, the appeal should be allowed.
The decision under appeal was clearly one of discretion and, accordingly, it could not be disturbed unless the Court was persuaded that the Motions Judge had erred in principle.
At the time the action was commenced, the declaratory relief that was sought was available only in an action. Since then, that relief became available only on an application for judicial review. But in this case, whether or not the Commissioner was to be regarded as "unnecessarily" made a party defendant must be determined in the context of the litigation that was commenced and was proceeding as an action. It was therefore not appropriate to examine this question as if the proceeding before the Court were an application for judicial review.
The respondent relied upon two recent decisions as supporting his argument that the Commissioner conducting a public inquiry can properly be named as a party in judicial review proceedings. The propriety of joining the Commissioner was not, however, at issue in either of those cases and in both the inquiry was still in progress. The public inquiry at issue herein ended long ago. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. In this case, the respondent did not seek any relief in the action against the Commissioner personally. Rather, the principal remedies which he sought were the setting aside of the Report and its removal into the Court. Such relief can just as well be obtained from the Attorney General alone. The Commissioner may be a "necessary witness", but that does not mean that he is a necessary party. It is a well-accepted principle that a person ought not to be made a party to an action solely for the purpose of discovery. He was therefore unnecessarily joined as a party.
It may well be that the evidence of the appellant Parker will be needed at trial, but that, by itself, was not a sufficient reason for requiring him to remain as a party defendant. The Federal Court Rules, 1998 themselves (Rules 238, 233) provide for the examination for discovery of, and the production of documents by, a non-party. The potential is thus available under these Rules for the respondent to secure a measure of discovery of the Commissioner even though he may not be a party to the action.
Moreover, the respondent would be entitled to subpoena Parker to testify at trial and, for the same purpose, to subpoena other persons who were present at the meeting referred to in the respondent's affidavit.
statutes and regulations judicially considered
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5), 18.4 (as enacted idem).
Federal Court Rules, C.R.C., c. 663, R. 1716(2).
Federal Court Rules, 1998, SOR/98-106, RR. 233, 238.
Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10, Part IV (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 16).
Rules of the Supreme Court, 1883 (The) (U.K.), St. R. & O. 1903, Ord. XVI, R. 11.
cases judicially considered
applied:
Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; (1997), 151 D.L.R. (4th) 119; 1 Admin. L.R. (3d) 1; 118 C.C.C. (3d) 443; 14 C.P.C. (4th) 1; 10 C.R. (5th) 163; 40 Imm. L.R. (2d) 23; 218 N.R. 81; Visx Inc. v. Nidek Co. (1996), 72 C.P.R. (3d) 19; 209 N.R. 342 (F.C.A.); Nabisco Brands Ltd.-Nabisco Brands Ltée v. Procter & Gamble Co. et al. (1985), 5 C.P.R. (3d) 417; 62 N.R. 364 (F.C.A.); Amon v. Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357; Wilson v. Church (1878), 9 Ch. D. 552.
distinguished:
Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 F.C. 527; (1997), 146 D.L.R. (4th) 708 (C.A.); Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440; (1997), 151 D.L.R. (4th) 1; 48 Admin. L.R. (2d) 1; 216 N.R. 321; Diotte v. Canada, [1991] 1 F.C. 731; (1990), 134 N.R. 71 (C.A.); Adams v. Royal Canadian Mounted Police (Commissioner) et al. (1995), 182 N.R. 354 (F.C.A.); Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684; (1978), 12 A.R. 449; 89 D.L.R. (3d) 161; 7 Alta. L.R. (2d) 370; 23 N.R. 565; Canada Labour Relations Board v. Transair Ltd., [1977] 1 S.C.R. 722; (1976), 67 D.L.R. (3d) 421; 76 CLLC 14.024; 9 N.R. 181.
referred to:
Ermineskin Indian Band No. 942 et al. v. Hodgson et al., A-635-97, Stone J.A., judgment dated 16/4/98, F.C.A., not yet reported; Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3; (1994), 25 Admin. L.R. (2d) 161; 167 N.R. 241 (C.A.); Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447; (1994), 17 Admin. L.R. (2d) 2; 164 N.R. 361 (C.A.); Vandervell Trustees Ltd. v. White, [1971] A.C. 912 (H.L.); MacRae v. Lecompte; The Queen in right of Ontario, Third Party (1983), 143 D.L.R. (3d) 219 (Ont. H.C.).
authors cited
Anthony, R. J. and A. R. Lucas. A Handbook on the Conduct of Public Inquiries in Canada. Toronto: Butterworths, 1985.
Canada. Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens. Report. Ottawa: Minister of Supply and Services Canada, 1987 (Commissioner: William D. Parker).
APPEAL from a Trial Division decision (Stevens v. Parker, J., et al. (1997), 128 F.T.R. 194 (F.C.T.D.)) dismissing a motion to strike the appellant Parker as a party defendant to the respondent's action. Appeal allowed.
counsel:
E. A. Cronk and T. Wynne for appellant.
Peter R. Jervis and Elizabeth Grace for respondent.
Richard Kramer for Attorney General of Canada.
solicitors:
Lax O'Sullivan Cronk, Toronto, for appellant.
Lerner & Associates, Toronto, for respondent.
Deputy Attorney General of Canada for Attorney General of Canada.
The following are the reasons for judgment rendered in English by
Stone J.A.: This is an appeal from an order of the Trial Division [Stevens v. Parker, J., et al. (1997), 128 F.T.R. 194] which rejected the appellant's motion to strike the appellant Parker as a party defendant to the respondent's action and for other relief pursuant to subsection 1716(2) of the former Rules of the Court [Federal Court Rules, C.R.C., c. 663].
The respondent's action was commenced on December 18, 1987. Paragraph 5 of the statement of claim alleges that the appellant Parker "acted outside of and in excess of his jurisdiction and failed to act in accordance to the principles of natural justice" in conducting an inquiry into matters concerning the appellant that are referred to in Order in Council P.C. 1986-1139 of May 15, 1986. By that instrument, the appellant Parker (then Chief Justice of the Supreme Court of Ontario), was directed to inquire into and report to the Governor in Council regarding allegations of conflict of interest in relation to the respondent's conduct, dealings and actions.
The respondent further alleges that the report which emanated from the inquiry and which was submitted to the Governor in Council in December 1987, has caused injury to him and has damaged his reputation in the community [Commission of Inquiry into the Facts of Allegations of Conflict of Interest Concerning the Honourable Sinclair M. Stevens. Report.]
Paragraph 7 of the statement of claim sets forth the prayer for relief. It reads:
7. The Plaintiff claims as follows:
(A) a declaration that the Report be set aside and declared to be of no force and effect by reason of the matters set out in paragraph 5 of the Declaration;
(B) an order removing to this Court the said Report and all records, proceedings, papers and transcript of evidence relating to the Inquiry;
(C) his costs of this proceeding; and
(D) such further and other relief as the Plaintiff may be entitled to and as to this Court may seem just.
In his response to the appellants' demand, the respondent supplied particulars regarding the allegations made in paragraph 5 of the statement of claim, including the following:
Receiving and acting on submissions made by Commission counsel after the close of the public hearings and without affording Mr. Stevens' counsel an opportunity to reply.1
The response also contains the following particulars of the role which Commission counsel allegedly played and which the respondent contends was in breach of the principles of natural justice:
Commission counsel either created a perception of bias or evidenced actual bias when, after the close of the public hearings and without giving Mr. Stevens an opportunity to reply, they acted in a decision-making role by participating in the preparation of the Commissioner's Report and influencing the determination by the Commissioner of certain fundamental issues, including the definition of conflict of interest.2
In paragraph 12 of his affidavit filed in opposition to the motion to strike, the respondent states:
At the close of the public hearings of the Parker Commission in February 1987, my counsel and other counsel raised a serious concern before Commissioner Parker that it would be unfair and inappropriate for Commission counsel, who had taken a very adversarial role in the Commission proceedings, to have the opportunity of making adversarial closing submissions which were perceived to be quite one-sided and to also play a role in the preparation and drafting of the Commissioner's report. Commissioner Parker acknowledged this concern and agreed that he would write the report and that commission counsel would not be involved in the writing of the report. He did indicate that he might turn to them for assistance such as "looking up points of evidence" or matters of that nature. However, it was clearly understood that Commission counsel would not be participating in the drafting or preparation of the report. Commission counsel had already submitted over 700 pages of written submissions which were adversarial in nature and which urged the Commissioner to adopt an extremely broad and unprecedented definition of conflict of interest.3
The parties are in agreement that this "understanding" was allegedly arrived at during a meeting between the appellant Parker and some of the counsel present at the inquiry including lead counsel for the Commission, counsel for the respondent, his wife's counsel and counsel for the Government of Canada.
It is now clear that the findings of a commission of inquiry such as this "are simply findings of fact and statements of opinion" of the commissioner, that there are "no legal consequences attached" to his or her determinations, and that they are "not enforceable and do not bind courts considering the same subject matter": Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System) , [1997] 3 S.C.R. 440, per Cory J., at page 460. At the same time the courts have exercised supervisory powers so as to ensure that procedural safeguards are adhered to, and have granted the equitable remedies of declaration and injunction. See R. J. Anthony and A. R. Lucas, A Handbook on the Conduct of Public Inquiries in Canada (Toronto: Butterworths, 1985), at pages 153-154.
The issue presently before the Court is whether the appellant Parker is a necessary party defendant to the respondent's action challenging the Commission's Report. Subsection 1716(2) of the Rules reads as follows:
Rule 1716 . . .
(2) At any stage of an action the Court may, on such terms as it thinks just and either of its own motion or on application,
(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party, or
(b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the action may be effectually and completely determined and adjudicated upon, to be added as a party,
but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as the Court may find to be adequate in the circumstances.
The Motions Judge determined that the appellant Parker had not ceased to be a necessary and proper party and, accordingly, that he should not be removed from the action. She found support for that view in Diotte v. Canada, [1991] 1 F.C. 731 (C.A.) and Adams v. Royal Canadian Mounted Police (Commissioner) et al. (1995), 182 N.R. 354 (F.C.A.). She went on to reject a request for alternative relief which, if allowed, would have limited the appellant Parker's involvement in the action to that of a board or tribunal named as a party respondent, or added as an intervenor, in an application for judicial review.
The decision under appeal was clearly one of discretion and, accordingly, it should not be disturbed unless this Court is persuaded that the Motions Judge erred in principle. See for example Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, at pages 426-427; Visx Inc. v. Nidek Co. (1996), 72 C.P.R. (3d) 19 (F.C.A.); and Nabisco Brands Ltd.-Nabisco Brands Ltée v. Procter & Gamble Co. et al. (1985), 5 C.P.R. (3d) 417 (F.C.A.).
Paragraph 1716(2)(a) of the Rules confers jurisdiction on the Court at any stage of an action and on such terms as it thinks just to order any person "who has been improperly or unnecessarily" joined to cease to be a party. The appellants do not contend that the appellant Parker was improperly joined at the time the action was commenced, but only that he was "unnecessarily made a party" because his presence in the action is not necessary for the respondent to obtain the relief he seeks in paragraph 7 of the statement of claim. They maintain that no claim is made against the appellant personally or in his former capacity as Commissioner. Rather, the relief claimed by the respondent is restricted to having the Report set aside and declared of no force and effect for the reasons pleaded in paragraph 5 of the statement of claim.
The respondent, for his part, contends that the presence of the appellant Parker as a defendant is necessary in order that he will have full and complete discovery of him. This contention is more fully fleshed out at paragraph 38 of the respondent's written argument:
The allegations of substantive and procedural unfairness made in the Statement of Claim and Response to Demand for Particulars herein, which for the purpose of the motion under appeal are assumed to be true, directly challenge Commissioner Parker's conduct of the inquiry, including the manner in which he prepared his report and the conduct of his Commission counsel. Thus, for the trial judge to be able to effectively and fully determine all the matters in issue in this action, including the extent of Commissioner Parker's undertaking not to involve Commission counsel in the preparation of his report, and to be in position ultimately to grant the relief claimed by Mr. Stevens, it is necessary that Commissioner Parker remain a party to the action and be subject to the usual discovery obligations of a party to an action. Since the Court requires his complete evidence, Commissioner Parker's apparent unwillingness to take advantage of the opportunity made available to him to defend the propriety of his report is not relevant.
At the time the action was commenced, the declaratory relief that is sought was available only in an action. Since February 1, 1992, when amendments to section 18 [as am. by S.C. 1990, c. 8, s. 4] and the new section 18.1 [as enacted idem, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7] came into force, such relief is available only on an application for judicial review. See for example Ermineskin Indian Band No. 942 et al. v. Hodgson et al. (Court file No. A-635-97, April 16, 1998), at paragraph 16. Because an action had to be brought for the declaratory relief which the respondent seeks, whether or not the appellant Parker is to be regarded as "unnecessarily" made a party defendant must be determined in the context of the litigation that was commenced and is proceeding as an action. It is therefore not appropriate to examine this question as if the proceeding before the Court were an application for judicial review.
The respondent relies on this Court's decision in Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 F.C. 527 (C.A.) and Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System, supra, as indicating that a commissioner conducting a public inquiry is properly named as a party respondent in judicial review proceedings. It is apparent, however, that the propriety of joining the commissioner was not in issue in either of those cases. Moreover, in both cases the inquiry was still under way, and the issue under scrutiny was whether a commissioner ought not to participate in making a finding of misconduct against a party under investigation. By contrast, the public inquiry in the case at bar ended long ago.
In Diotte, supra, relief in the nature of certiorari was sought by way of judicial review to quash a decision dismissing the applicant from the Canadian Armed Forces. The Court concluded at page 735 it would be appropriate to add the decision maker as a party respondent on the ground that he was "entitled . . . to defend the propriety of his decision and his authority to make that decision in the manner it was made". The Court found that as a high-ranking career officer in the Forces, the decision maker had a personal interest in defending his decision and the suitability of the procedures which he adopted in rendering it.
The decision in Diotte played some part in this Court's decision in Adams, supra. The claim in Adams was initially commenced as an application for judicial review and subsequently converted into an action pursuant to subsection 18.4(2) [as enacted idem] of the Federal Court Act. The relief sought was for certiorari to quash the decision of certain officers of the RCMP at various stages of the disciplinary process, and for a declaration that Part IV of the Royal Canadian Mounted Police Act [R.S.C., 1985, c. R-10 (as am. by R.S.C., 1985 (2nd Supp.), c. 8, s. 16)] was invalid. This Court upheld the decision of the Motions Judge who allowed one of the respondents to remain as a party to the action on the ground that he might have been involved in the selection of a biased board which ultimately ordered the member to resign or be dismissed from the force.
I am not persuaded that either of these decisions has direct application to the present appeal. It was clear in Diotte, supra, that the Crown as respondent in the proceedings sought to have the decision maker added as a co-respondent on the basis that the remedy of certiorari could not lie against the Crown. The Court chose to join the decision maker because he had a personal interest in the outcome of the proceeding. That, of course, was a proceeding by way of judicial review pure and simple. Adams, supra, as we have seen, was converted into an action for judicial review. By contrast, the present matter is an ordinary action which was commenced and is proceeding as such.
In arguing that the appellant Parker was improperly joined as a party defendant, the appellants rely on the decision in Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684, where the Supreme Court of Canada maintained that it is generally improper to place an administrative tribunal in the position of defending his or her own decision. Estey J. stated at page 709 that the participation of a tribunal as a party to a proceeding involving the legality of its actions "can have no other effect than to discredit the impartiality of an administrative tribunal either in the case where the matter is referred back to it, or in future proceedings involving similar interests and issues or the same parties." In addition, he quoted with approval the following comments by Spence J. in Canada Labour Relations Board v. Transair Ltd. , [1977] 1 S.C.R. 722, at page 747:
The issue of whether or not a board has acted in accordance with the principles of natural justice is surely not a matter upon which the Board, whose exercise of its functions is under attack, should debate, in appeal, as a protagonist and that issue should be fought out before the appellate or reviewing court by the parties and not by the tribunal whose actions are under review.
See also Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 (C.A.) and Canada (Human Rights Commission) v. Canada (Attorney General), [1994] 2 F.C. 447 (C.A.).
I would note, however, that both of these cases from the Supreme Court concerned applications for judicial review of a decision of an administrative tribunal. I would emphasize again that the matter before us was properly commenced as such. It is to be noted as well that subsection 1716(2) of the Rules is intended to apply at "any stage of an action". It seems to me, therefore, that the relevant common law principles that have developed regarding the joinder of parties to an action are best consulted in the particular circumstances of this case, rather than the jurisprudence respecting the joinder of a party in a proceeding for judicial review.
Although the present appeal is concerned with a claimed misjoinder of party, it is instructive to have some regard to the decided cases which have dealt with joinder of a party under similar rules of practice. In Amon v. Raphael Tuck & Sons Ltd., [1956] 1 Q.B. 357, the Court was asked to add a defendant to the action pursuant to Order XVI, Rule 11 of the English rules of practice [The Rules of the Supreme Court, 1883 (U.K.), St. R. & O. 1903]. By that Rule the Court was authorized to join any person "whose presence before the court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter". I would note that Order XVI, Rule 11 of the [former] English rules corresponds to paragraph 1716(2)(b ) of the Rules of this Court. It seems to me that the meaning which the courts have given to the word "necessary" in that paragraph is of assistance in understanding the intent of the words "unnecessarily made a party" in paragraph 1716(2)(a ). In concurring with his colleagues that the presence of the proposed new defendant was not "necessary", Devlin J. (as he then was) stated, at page 380:
The person to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? It is not, of course, merely that he has relevant evidence to give on some of the questions involved; that would only make him a necessary witness. It is not merely that he has an interest in the correct solution of some question involved and has thought of relevant arguments to advance and is afraid that the existing parties may not advance them adequately. That would mean that on the construction of a clause in a common form contract many parties would claim to be heard, and if there were power to admit any, there is no principle of discretion by which some could be admitted and others refused. The court might often think it convenient or desirable that some of such persons should be heard so that the court could be sure that it had found the complete answer, but no one would suggest that it is necessary to hear them for that purpose. The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party. [Emphasis added.]
See also Vandervell Trustees Ltd. v. White, [1971] A.C. 912 (H.L.), at pages 930, 936 and 940.
It is important to note, in my view, that the respondent does not seek any relief in the action against the appellant Parker personally. Rather, the principal remedies which he seeks are the setting aside of the Report and its removal into the Court. It seems to me that such relief can just as well be obtained from the Attorney General alone. To adopt the words of Devlin J. in Amon, supra, the appellant Parker may be a "necessary witness" but that does not mean he is a necessary party. In my view he was unnecessarily joined as a party to the action.
It would appear that the respondent's primary interest in joining the appellant Parker is to ensure his availability for discovery as a party defendant. Thus in paragraph 38 of the respondent's written argument, he contends that the appellant Parker must remain a party so as to "be subject to the usual discovery obligations of a party to an action". That a person ought not to be made a party to an action solely for the purpose of discovery is a well-accepted principle. As it was enunciated by Jessel M.R. in Wilson v. Church (1878), 9 Ch. D. 552, at page 555:
Nothing could be more vexatious or annoying to a man than to be made a party to an action in which he has no interest, where he is a mere servant of another, and where he may be exposed to a large amount of expense in the shape of costs wholly without necessity.
See also MacRae v. Lecompte; The Queen in right of Ontario, Third Party (1983), 143 D.L.R. (3d) 219 (Ont. H.C.), at pages 224-225 and the cases there discussed. It may well be that the evidence of the appellant Parker will be needed at trial but that, by itself, is not a sufficient reason for requiring him to remain as a party defendant.
It is to be noted as well that it is no longer the case that a non-party is absolutely immune by our rules of civil procedure from discovery by a party in an action. The Federal Court Rules, 1998 [SOR/98-106] themselves provide for the examination for discovery of, and the production of a document by, a non-party. By Rule 238 the Court may grant leave to a party to examine a non-party "who might have information on an issue in the action" if it is satisfied that "the party has been unable to obtain the information informally . . . or from another source by any other reasonable means", that "it would be unfair not to allow the party an opportunity to question . . . before trial" and that the questioning "will not cause any undue delay, convenience or expense to the person or to the other parties". By Rule 233 the Court may order the production of any document in the possession of a non-party "if the document is relevant and its production could be compelled at trial". The potential is thus available under these two rules for the respondent to secure a measure of discovery of the appellant Parker even though he may not be a party to the action.
Moreover, the respondent would be entitled to subpoena the appellant Parker to testify at trial and, for the same purpose, to subpoena other persons who were present at the meeting referred to in paragraph 16 of the respondent's affidavit.
I would allow the appeal with costs, set aside the order of the Trial Division and strike the appellant Parker from the action as a party defendant.
Linden J.A.: I agree.
Robertson J.A.: I agree.
1 Response to demand for particulars, July 23, 1996, Appeal Book, at p. 16.
2 Ibid., at p. 19.
3 Affidavit of Sinclair M. Stevens, March 13, 1997, Appeal Book, at p. 61.