Rule 31.10 of the Ontario Rules of Civil Procedure provides for the right to examine a non-party. This rule allows a party to a legal action to request that a non-party to the action be examined for discovery purposes.
Examining a non-party is done to gather information or evidence that may be relevant to the case. This includes documents or other materials in the non-possession, party’s as well as sworn testimony. The examination is conducted in the same manner as a discovery examination for a party to the action.
In order to examine a non-party under Rule 31.10, several requirements must be met. To begin, the party requesting the examination must demonstrate that the non-party has relevant information or documents that cannot be obtained from any other source. The party must also demonstrate that the examination does not unfairly or unduly prejudice the non-party.
Using words like “extraordinary” or “exceptional” to describe the standard for obtaining permission to examine a non-party is not helpful. Rather, the focus should be on whether the requirements outlined in Rule 31.10(2) have been met. If these conditions are met, the court has the discretion to decide whether to allow non-party discovery. If an examination is required for the proper administration of justice, the court should not hesitate to grant permission for it to be carried out.
Furthermore, the non-party must be notified of the examination, and the examination must be conducted in accordance with the Rules of Civil Procedure. This includes providing a copy of the request for examination to the non-party and giving the non-party a reasonable opportunity to object to the examination.
The opposing party’s counsel (D) does not have the authority to object to questions directed at the non-party during the examination by the party (P). If the non-party objects to the examination, the party requesting the examination can ask the court to issue an order compelling the examination to take place. When deciding whether to grant the order, the court will consider the same factors outlined above.
It is important to note that a non-party examination does not replace other forms of discovery, such as interrogatories or document production. It is also not a means of harassing or annoying the non-party, nor is it a means of causing unnecessary expense. If a party abuses his or her right to examine a non-party, the court may impose sanctions such as costs or other penalties.
To summarize, the right to examine a non-party is a valuable tool for gathering relevant information or evidence in a legal proceeding. However, it is critical to ensure that all requirements for conducting such an examination are met and that the examination is not misused.
