VOL. XIX.] EXCHEQUER COURT REPORTS. 329 IN THE EXCHEQUER COURT OF CANADA. .1919 December 28. BETWEEN HIS MAJESTY THE KING, PLAINTIFF; AND THE ONTARIO POWER COMPANY AND THE TORONTO POWER.COMPANY, DEFENDANTS. Discovery, right to and scope of—Co-defendants---Adverse party— No waiver of right to refuse to answer by appearing—Exchequer Court Rule No. 154. Under order from the Power Controller, the Toronto Power Company 'delivered a certain amount of electric power to the On-tario Power Company. The Toronto Power Co. subsequently • assigned all its rights against the Ontario Power Company to plaintiff, who now, by its Information, as assignee of the Toronto • Power Co., asks the Court to fix the amount due to the Toronto Power Co. and that the Ontario Power Co. be ordered to pay this amount. The Toronto, Power Co.' filed defence but made no claim against the Ontario Power Co., its co-defendant. An appointment was taken out by the Ontario Power Co. to examine an officer of its co-defendant on discovery, the plaintiff not being notified. The examination was begun without objection from either party and was continued until on a certain question being put; witness . réfused to answer. Held, that, though any adverse party in a suit can 'be examined on discovery, yet such examination must be limited to the issues to be tried in the action as between the parties.f 2. That on the above stated facts, the Ontario Power Company had no right to examine its co-defendant herein on discovery, not being an adverse party, the right thereto being against the Crown only as the adverse party. 3. That •a witness submitting himself to examination for discovery does not waive his right to object to answer questions on 1 See Hamilton vs. Quaker Oats-Co. 46 O. L. R. 309.—(Nov. 26th, 1919).
830 EXCHEQUER COURT REPORTS. [V OL XIX. 1919 matter not open to the examining panty, and he is not 'bound to THE KING answer all questions whether properly pit or not. V. THE Ô Semb'e. That where a codefendant is an adverse party, the POW ER Co. right to discover would exist. AND THE TORONTO POWER Co. HIS case came on before the Honourable Mr. Reasons for Jndpamnt. Justice Cassels, in Chambers, at Ottawa, on the 20th December, 1919, on 'application by the Ontario Power Co. to compel an officer of the Toronto Power Co. to answer certain questions put to him when on examination for discovery. The Crown was' not notified that this examination was to take place. Mr. C. S. MacInnes, K.C., and Mr. Robinson, for The Ontario Power Company. Mr. McKay, K.C., for .the Toronto Power Company. The questions 'involved and 'those parts of the pleadings necessary -to be referred to . herein are stated in the reasons for judgment. Cassels, J. (29th December, 1919) delivered judgment. . This is an application to compel the witness, Farley' G. Clark, the Chief Engineer for the Toronto Power Company, to attend for examination at his own expense. ' The examination is intended as an examination for discovery. The Tnflorration in this case is filed by • His Majesty on the Information of the Attorney-General of Canada. The defendants are the Ontario Power Company, and the Toronto Power Company. The Crown alleges certain claims made by the Toronto Power •Company against the Ontario Power Company in respect of power furnished under the direction's of the power controller. The seventh clause of the Information reads, as follows:
VOL. XIX.] EXCHEQ U ER COURT REPORTS: 331 "7. By indenture made the 28th day of 1919 "March, 1919, the' defendant, the Toronto THE RI1fG "Power Company, Limited, assigned, trans- THE-ONTARIO POWER Co. ANU "ferred and set dyer -unto . His Majesty The HE.TORONTÔ TPOWER'Co "Kin g and his succe g ssors in righ t- of the Do- 8Osagns for "mihiion • of Canada any right or interest the .asa.11:ent. "Toronto Power Company, Limited, may have . "in or to any claim or claims, demand or de- • "mands, against any and all person or persons; "firm -or firms, corporation br corporations, in-' "eluding the ; defendant, the Ontario Power "Company of Niagara Falls, in respect of the. "matters. in said Orders in . Council referred to, • "and the Attorney-General, in addition to any "other right of action which His Majesty may "have against the said defendant, the Ontario "Power Company of Niagara Falls, claims "against said Company 'as assignee as afore.-"said." I confess, as I .have stated on two or three. occasions, that with this 'allegation on the pleadings, it is 'difficult to see why the Toronto Power Company should be a party. to the 'action. All their rights have passed to the Crown. However, it was , arranged that the questions should all stand over to the trial of the action when the evidence would be forthcoming and the rights of all parties determined. The Toronto Power Company filed a defence to the action. They make no claim whatever as against the Ontario Power Company. • The sole action so far as the pleadings are concerned is an 'action be- ' tween the Crown as assignees of the claim a the Power Company against the Ontario Power Com- . pany.
332 EXCHEQUER COURT REPORTS. [VOL. XIX. 919 The Ontario Power Company issued a subpoena Tim KIIIG and notice calling upon the officer of the Toronto THE ONTARIO POWER CO. Power Company to submit to examination for dis- AND aE TOR ON.TO TPOWER CO covery. Mr. Clark attended and was examined at Reason' for considerable length, but when the questions which Jua°a: he refused to answer were put to him, on the advice of his Counsel he declined to answer as not being relevant to the issues raised between the defendants. There is no question but that an adverse party can be examined under the rules of the court, but an examination for discovery must be limited to the issues to be tried in the action 'as between the parties. The rule of the Exchequer Court, No. 154, reads as follows : "Any party may, at the trial of an action or "issue, use in evidence any part of the ex- amination for the purposes of discovery of "the opposite party; but the Judge may look at "the whole of the examination, and if he is of "opinion that any other part is so connected "with the part to be used that the last mention-" ed part ought not to be used without such "other part, he may direct such other part to be "put in evidence. "Where any departmental or other officer of "the Crown, or an officer of the corporation has "been examined for the purposes of discovery, "the whole or 'any part of the examination may "be used as evidence by 'any party adverse in "interest to the Crown or corporation; and if "a part only be used, the Crown or corporation
VOL. XIX.] EXCHEQUER COURT REPORTS. 333 " may put in and use thé remainder :of /the .ex-1 9 19 . "amination of the officer,. or any, part thereof, THE KixG ' `'aS .,evidence on the part of the Crown or of HE OANT R EO TPOWER CO. AND "the corporation." THE TORONTO POWER Co. I may mention the Crown, the informant, in the It B ► ent action were not notified of the examination. How can this evidence be utilized at the trial as against the Crown who are the parties suing as assignees of the Power Company. Of what relevancy can it be as between the Ontario Power Company and the To ronto Power Co. at the trial? ' The Toronto Power Co. making no claim whatever as against. the On-tario Power Company. It is said that because the Toronto Power Company submitted their officer to examination they are estopped from raising this question. The argument is that where a defendant appears in an action, he is estopped from disputing the jurisdiction •of the Court. In that case he attorns to the jurisdiction of the Court. It.is ari entirely different question to say . that because he submits for examination for discovery that therefore when a question is asked not open to the examining party that because he has submitted to examination he is . bound to answer all questions whether they are questions properly put or not. I would refer to the late case of Aktiengesells-. Matt Fir Autogene Aluminium Schweissung v. London Aluminium Company Ltd.' See the lan-uage.of Swinfen Eady, M. R., at page 76. There, of a [1919] 2 Ch. D. 67.
334 EXCHEQUER COURT REPORTS. [VOL. XIX. 1919 course, the examination was by interrogatory, but THE RING this can in no way affect the principle. TEE ONTARIO POWER Co. AND Solicitor for plaintiff: Hugh Guthrie, K.C. TEE TORONTO Powto Co. Solicitors for Ontario Power Co.: Kilmer, Irving & Bessons for 'J'udgm•nt. Davis. Solicitors for Toronto Power Co.: McCarthy & Mc-Carthy.
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.