Further and better discovery

Summary

The Court upheld the Commissioner's complaint that the plaintiff, in its discovery affidavit, had failed to provide sufficient particulars of the steps taken in relation to obtaining potentially relevant documents. As well, the Court ordered the plaintiff to list individually the documents for which it claimed privilege.

Impact of decision

The decision reaffirms the fact that the Courts will ensure that litigants comply with their discovery obligations

Facts

The Commissioner applied for further and better discovery by the plaintiff.

The issue in the substantive matter is whether the plaintiff and an associated company had, in the relevant years, the necessary commonality of shareholding for the plaintiff to be able to offset losses from its associated company.

The Commissioner alleged that the affidavit of the plaintiff failed to provide sufficient particulars of the steps taken in relation to obtaining potentially relevant documents from its accountants and lawyers.

Similarly, the Commissioner alleged that the plaintiff had failed to state the steps it took to obtain documents relevant to its claim against its accountants alleging breach of duty in respect of the failure to arrange a transfer of shares.

Lastly, as the plaintiff had failed to list documents individually for which it claimed privilege, the Commissioner applied for an order that the documents be properly listed by the plaintiff.

Decision

The Court agreed with the Commissioner's arguments and ordered further and better discovery.