T-722-75
Imperial Marine Industries Ltd. (Plaintiff)
v.
Fireman's Fund Insurance Company and Ameri-
can National General Agencies (Defendants)
Trial Division, Mahoney J.—Vancouver, Novem-
ber 1 and 2, 1976.
Procedure—Application for order for examination for dis
covery pursuant to Rule 465(19)—Whether special reason or
exceptional case—Federal Court Rule 465(19).
Plaintiff seeks an order to compel first defendant to produce
its underwriter for examination for discovery. The said defend
ant's claims officer was examined for discovery on three occa
sions. On the first occasion he was asked to provide answers to
the questions now put but was unable to do so since they related
to the underwriting of the policy in issue. On the last occasion
he was not asked to inform himself and reply to these questions.
Held, the application is dismissed. Under Rule 465(19)
"special reason" must mean that the information sought is
material to the issue and an "exceptional case" would be one
where the Court is satisfied that the usual procedure of the
individual being questioned informing himself of matters not
within his personal knowledge would not satisfy the ends of
justice. Neither of these factors is present.
Donald Applicators Ltd. v. M.N.R. [1966] Ex.C.R. 481,
applied.
APPLICATION.
COUNSEL:
A. Szibbo for plaintiff.
M. J. Bird for defendants.
SOLICITORS:
Bull, Housser & Tupper, Vancouver, for
plaintiff.
Owen, Bird, Vancouver, for defendants.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The plaintiff seeks an order, pur
suant to Rule 465(19), compelling the defendant,
Fireman's Fund Insurance Company, to produce
one Peter Wright for examination for discovery.
This is an action by an insured, under a written
contract of insurance, against its insurers who are
alleged not to have paid all of the monies payable
in respect of two losses incurred by the insured. An
officer produced by the said defendant, Richard
Henry Bodfield, was examined for discovery on
December 10, 1975 and again on March 10, 1976.
On May 11, 1976, on the plaintiffs application, an
order of this Court issued requiring Bodfield to
answer certain questions which he had refused to
answer when being examined. The questions which
have led to this application were not subject of the
May 11 order nor of the application therefor, nor
were there undertakings sought from Bodfield that
he inform himself and provide answers to them.
His examination for discovery has been concluded.
Bodfield is engaged in the claims side of the said
defendant's business; Wright is engaged in the
underwriting side. The questions, and Bodfield's
failure or inability to answer them, all appear in
the transcript of the December 10, 1975 examina
tion; all relate to underwriting generally or to the
underwriting of the policy in issue: to things that
occurred, to the underwriter's state of mind, to
what he thought prior to the making of the policy.
The defendants, however, admit making the
policy; the issue is its interpretation.
Rule 465(19) provides:
(19) The Court may, for special reason in an exceptional
case, in its discretion, order a further examination for discovery
after a party or assignor has been examined for discovery under
this Rule.
That is strong language. The party seeking further
examination for discovery must establish that it
does so for "special reason in an exceptional case"
before the Court is called upon to exercise its
discretion. It seems to me that one of the elements
of a "special reason" must be that the information
sought is clearly material to the issue before the
Court. One "exceptional case" is, I take it, the
situation where the Court is satisfied that the
usual procedure of the individual being questioned
informing himself of matters not within his person
al knowledge, would not likely satisfy the ends of
justice'. I am not satisfied that this is such an
exceptional case nor, if it were, that the indicated
element of a "special reason" is present.
ORDER
The application is dismissed.
1 Donald Applicators Ltd. v. M.N.R. [1966] Ex.C.R. 481.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.