April Invts. Ltd. v. Menat Construction Ltd. (1975), 11 O.R. (2d) 364 (H.C.) [April]

In April, the Court granted the Plaintiff leave to examine a Defendant regarding the findings from a Defendant’s expert report.  The report was conducted after the EDs for both parties have been completed.

The Plaintiff took the position that new facts may have come to light as a result of the report and that the Plaintiff was entitled to examine the Defendant with respect to these facts.  Pennell J. agreed with the Plaintiff.  He found that:

The court has jurisdiction to order further discovery where the examination already had has [sic] failed to give the party seeking it the discovery to which he is entitled. To the making of that appraisal one can do little more than offer suggestion of example. Justification for such an order includes the following: “[Where] special grounds are shown”: Martin v. Deutch et al., [1943] O.W.N. 774, [1943] 4 D.L.R. 798; “[Where] it is in the interest of justice”: Standard Trading Co. v. Seybold (1904), 7 O.L.R. 39; “Where justice so requires”: Hellofs v. Royal Bank of Canada, [1940] 1 W.W.R. 6.

Pennell J. did not specify whether a second ED was granted in accordance with special grounds or in the interests of justice.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.