The case is cited as Tsakiris v. Tsakiris, 2007 CanLII 44184 (S.C.J) at found at http://www.canlii.org/en/on/onsc/doc/2007/2007canlii44184/2007canlii44184.html
Rule 20(5) of the Family Law Rules provides as follows:
The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
2. The information is not easily available by any other method.
3. The questioning or disclosure will not cause unacceptable delay or undue expense.
Number 1 above is usually the place where argument between counsel is had and the Court at paragraphs 14 and 15 set out a rational methord at how to tackle this issue. I reproduce the paragraphs below:
[14] Unlike Rule 31.10 of the Rules of Civil Procedure which talks about unfairness in the context of proceeding to trial without an examination of a non-party, Rule 20(5) speaks of “unfairness…to carry on with the case without it”. I see this as permitting questioning of non-parties in a potentially broader range of circumstances than obtaining their evidence for trial, including securing evidence for use on a motion.
[15] How should the court assess “unfairness”? At least in the context of a motion seeking leave to examine a non-party, I think the starting point must be a consideration of the materiality of the information sought to an issue or issues in the proceeding. If questioning were not permitted, would the party be deprived of the opportunity to secure material evidence relating to an issue in the proceeding or that could have a material effect on the determination of an issue in the proceeding, be it on a motion or at the trial? Put another way, without the information from the non-party would the party lack material evidence lying outside his or her control that would be required to establish an element of its claim, whether on a motion or at trial?
An issue related to whether a lawyer can be questioned is whether solicitor-client privelege is being broken . Well the Court set out the the notion of fairness has been invoked as a basis for waiver of solicitor-client privilege when a client denies that he gave instructions to his lawyer, for example to settle a debt: Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd Edition), at §14.103. So, where a lawyer communicates an agreement to settle to the other side and his client subsequently denies giving instructions to his lawyer to settle, the party seeking to enforce the settlement may examine the lawyer as to whether he had received instructions to settle the matter: Bentley v. Stone (1998), 42 O.R. (3d) 149 (Gen. Div.). In Newman v. Nemes (1979), 8 C.P.C. 227 (Ont. H.C.J.), Southey J. expressed the view that (i) such instructions would not be privileged because the communication was not in respect of a confidential matter but, by its nature, was to be communicated to the other side and, in any event, (ii) the denial by the client would operate as a waiver of privilege.
In this case, it was held that whether the Respondent agreed to jointly retain a valuator for his businesses was crucial to the Applicant's motion, and the only place where the information could come from was the Respondent's former lawyer, since the Respondent was denying that he gave instructions to agree. The privelege was waived because it appeared from the Respondent's former solicitor's correspondence that the Respondent was agreeing to a joint retainer, but now denies it.
A good read for those looking to question third parties and need to broaden the scope for argument if it is contested and also a good read when it comes to having to question a lawyer previously on the file.
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