2001 SKQB 39 Q.B.G. A.D. 1998 No. 1940 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SASKATCHEWAN INSTITUTE OF APPLIED SCIENCE AND TECHNOLOGY and SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION RESPONDENTS (PLAINTIFFS) and HAGBLOM CONSTRUCTION (1984) LTD., MARCEL FORTIER, GREG MARQUIS and JOHN MACAROCHA APPLICANTS (DEFENDANTS) and CITY OF SASKATOON and WILLIAM HEWITT and EDWARDS AND EDWARDS ARCHITECTS LIMITED and PHILIP M. SCOTT ARCHITECT LTD. and MARCH SCHAFFEL ARCHITECTS LTD. and THE ARCHITECTS COLLABORATIVE and DAVID CARLYLE EDWARDS and WILLIAM EDWARDS and PHILIP M. SCOTT and ANN E. MARCH and FRANK WILLIAM SCHAFFEL and COCHRANE ENGINEERING SERVICES INC. and JEFFREY REICHERT THIRD PARTIES Shaunt Parthev and for the respondents (plaintiffs) Shannon L. Metivier William B. Purdy and for the applicants (defendants) Colin D. Clackson JUDGMENT McLELLAN J. January 24, 2001 [1] The defendants bring this application to compel responses to a large number of questions that were objected to at examinations for discovery of the proper officers on behalf of Saskatchewan Property Management Corporation ("SPMC"). They also seek an order requiring SPMC to comply with numerous undertakings. [2] On September 15, 1998, the plaintiffs issued statement of claim for damages in excess of $7,000,000.00 resulting from fire which broke out in the Tower at the Kelsey Campus in Saskatoon on January 5, 1997. [3] It is alleged in the statement of claim that the fire was caused by work done by the defendants at the Kelsey Campus on January 3, 1997 which involved the application of "Torch on" air vapour barrier to the northeast corner of the Tower. [4] The defendants filed statement of defence on October 21, 1998 and have subsequently brought third party proceedings against the City of Saskatoon, Fire Chief William Hewitt, and numerous architects and engineers. It is common ground that at the time the "Torch on" was applied to the Tower, the architects and engineers were involved in comprehensive assessment of several SPMC facilities including the Kelsey Campus. The work performed by the defendants was done in conjunction with that assessment. [5] The plaintiffs conducted examinations for discovery of the defendants on June 16, 17 and 18, 1999. [6] Counsel agreed, given the various levels of organization of SPMC, that three individuals from the corporation would be designated as proper officers for SPMC. It was hoped that by proceeding in this fashion it would minimize the number of undertakings. Counsel advise that each of the three individuals is knowledgeable with respect to certain issues in the law suit: Maurice Arsenault is regional director of SPMC and has personal knowledge regarding SPMC's policies and procedures. Paul Nepper was the project manager in charge of the Kelsey restoration after the fire and the most suitable person to address damage issues. Cyril Brock, the building manager is the person most familiar with the building itself. He was also physically present on the Kelsey Campus before, during and after the fire. [7] To date, examination of Maurice Arsenault has gone on for four days, examination of Cyril Brock for four and one-half days and examination of Paul Nepper for two days. None of these examinations have been completed. Nature of the Objections [8] The objections taken by the plaintiffs to the questions can be broadly categorized as follows: The question seeks to elicit the plaintiffs' manner of investigation or expert opinions; The question was or ought to have been asked by counsel of another witness more properly suited to answer the question; Questions are best asked of others, notably third parties to the action as they relate to issues between the defendants and the third parties; The question is irrelevant or improper. [9] shall deal with each individual objection in the order as set forth in the defendants' notice of motion except where the particular question has been withdrawn from the application by the defendants. EXAMINATION OF CYRIL BROCK Objection No. 2-Questions 660 to 664 [10] The following exchange took place: 660 Just looking at document number 522 of the plaintiff's productions,, Mr. Brock, 522 is letter from the Architects Collaborative to Mr. Paul Nepper enclosing report from Jeff Reichert of Cochrane Engineering to Dave Edwards. Just looking at that report of January 31st, 1997, that is report that came into the hands of SPMC? guess it did, yes. 661 Does SPMC accept as fact the observations made in that report, is there any problem with it? MR. PARTHEV: Again, that's not fair question to put to this witness. What is it that you want? These are observations of someone else, Mr. Reichert is not with SPMC and neither is Mr. Edwards. MR. PURDY: The report was transmitted from Mr. Edwards to Mr. Nepper at SPMC. MR. PARTHEV: There's no obligation on witness to accept something that's in document. It says what it says,those are Mr. Reichert's views of the world at the time, guess. 662 MR. PURDY: Does SPMC have any information to the contrary to the observations made in that report? MR. PARTHEV: Well again, Mr. Reichert is giving his opinion with respect to what he believes happened or exists in the roofslab-or at the roof, period. so again, that's matter of expert opinion, and it's his opinion. 663 MR. PURDY: So you don't know, Mr. Brock, of any position or any facts known to SPMC which might be contrary to the observations made by Mr. Reichert? MR. PARTHEV: Same response, Mr. Purdy. Those are not just observations, those are his opinion or opinions. We are not going to sit here and comment on somebody else's opinions. Those are not factual questions. 664 MR. PURDY: The observations, the factual observations made in the report of January 31st, does SPMC have any information to the contrary? MR. PARTHEV: Same response. MR. PURDY: We'll mark that, please. EXHIBIT D-42: LETTER DATED FEBRUARY 7, 1997 FROM ARCHITECTS COLLABORATIVE TO MR. NEPPER, ENCLOSING REPORT BY MR. REICHERT DATED JANUARY 31, 1997 [11] The author of the letter has been added as third party to the action by the defendants (a copy of the letter was not provided to me on the application). have no way of knowing what observations the question referred to. There must be some reasonable degree of specificity to question of this nature when reference is made to document. I fail to see why a party to an action should be required to accept or reject an opinion of another party to the action. The plaintiffs are not required to answer the questions asked. note that Mr. Parthev invited Mr. Purdy to ask Mr. Nepper (the project manager in charge of the restoration after the fire) whether SPMC accepted the recommendations of Cochrane Engineering as laid out in the letter. Objection No. 4-P. 294, Lines 3-12 [12] The question asked was "What cellulose fibre insulation was present at the time of the fire?" Counsel for the plaintiffs asked for clarification for the question. No clarification was provided and the question was not followed up. Provided that the clarification requested is provided, the plaintiffs should answer the question. Objection No. 5-P. 297, Lines 7-25 [13] The defendants wanted to know whether a Mr. Miner was a participant in the investigation of the loss following the fire. [14] The plaintiffs refused to answer on the ground that names of possible expert witnesses are not discoverable. [15] An affidavit was filed by Wayne Miner, the manager of the Security and Special Investigation Unit on behalf of Saskatchewan Government Insurance ("SGI"), wherein he deposed as follows: 2. That SGI was the lead insurer involved in the Kelsey fire of January 5, 1997 and as such on SGI being notified of the fire, was assigned the duty of investigating the cause and origin on behalf of SGI. 3. That shortly after January 5, 1997, probably on January 6, assigned Larry Rollins of my department, whose specialty was determining cause and origin of fire, to conduct an investigation of the fire at the Kelsey Tower. Unfortunately Mr. Rollins has since passed away. Nonetheless Mr. Rollins reported to me throughout his investigation and worked closely with him through the investigation process. 4. That attended at the scene of the fire at the Kelsey Tower on numerous occasions during the week of January the 6th, 1997, and concluded almost immediately on my arrival at the scene that litigation would ensue. That reached this conclusion based on number of factors, including most specifically, the size of the loss and damages which would no doubt result in possible recovery against those deemed at fault. 5. That the investigations conducted by my department are done in most part and with the ultimate goal of reporting to our litigation department in anticipation of possible litigation and as such in our assessment these reports are considered privileged because they are prepared with the ultimate goal of assisting counsel. That this is also true of the investigations done as to the cause and origin of the Kelsey fire on January 5, 1997, which in my assessment were conducted with the dominant purpose of assisting in litigation which was imminent. 6. That immediately upon the appointment of Mr. Parthev of McKercher McKercher Whitmore, as counsel, which am advised by Mr. Parthev was January 13, 1997, was instructed to direct all of our reporting to Mr. Parthev to assist in the conduct of the anticipated litigation and that likewise passed these instructions onto members of the investigation unit including Mr. Rollins. Thereafter, our investigation team worked closely with Mr. Parthev in furtherance of pursuing claim. [16] The affidavit answers the question asked notwithstanding that the defendants are not entitled at the discovery stage to the names of possible expert witnesses. Objection No. 6-P. 297, Line 26 to P. 300, Line [17] Two questions were asked: (a) Was there meeting arranged and held between SPMC fire investigators and the fire marshal, Ed Solie? and (b) Assuming there was meeting, what was reported by fire marshal Ed Solie to investigators of SPMC? [18] The plaintiffs refused to answer the question claiming litigation privilege. The issue of litigation privilege was recently dealt with by the Saskatchewan Court of Appeal in Hill v. Board of Education of Arcola School Division No. 72 (1999), 1999 CanLII 12302 (SK CA), 180 Sask. R. 256. In that case demand was made during questioning on the examination for discovery for the name of the adjuster who interviewed potential witnesses and prepared report, and the names of the witnesses interviewed. After thorough review of prior jurisprudence, Sherstobitoff J.A. came to the following conclusion: [10] The appellant must succeed on this point. The criterion for discoverability is whether the information sought may be characterized as being "facts that are or may be relevant to the determination of the facts in issue." The names of all potential witnesses clearly fall into that category, but they have already been provided. However, the name of the insurance adjuster who investigated the accident and the names of potential witnesses from whom he took statements, written or otherwise, on behalf of the appellant during the course of his investigation just as clearly do not. These names do not reveal anything of the facts in issue that the respondent does not already have, but do reveal details of the appellant's investigation of the facts in issue. The respondent cannot be said to be seeking facts when he asks for this information; he is seeking details of the appellant's investigation. That is exactly the sort of information that litigation privilege is designed to protect. [Emphasis added] [19] The appellant in Arcola School Division also appealed part of an order which required the appellant to "supply the facts contained in the investigator's reports, the information obtained from each student and the information obtained from Douglas Lupanko". In setting aside that portion of the order Sherstobitoff J.A. made the following comments: ... Orders such as these normally deal with specific questions asked on the discovery which the person being examined has declined to answer so that the court is dealing with specific matters. In this case the court was asked for and gave an order granting relief of such general nature that the meaning of the order is uncertain. [12] If the order is read as requiring the appellant to supply, verbatim, all parts of the reports and statements which deal with facts relevant to the issues, (and that is the meaning attributed to it by the parties), the order cannot stand. As noted above, the respondent conceded that the written documents themselves were privileged. If the privilege is to mean anything, it must apply to the content as well as the physical document. The appellant cannot be compelled to, in effect, copy all parts of privileged documents dealing with facts and to hand the copies over. To rule otherwise would be to penalize the party who first investigated the matter by compelling him to hand over the complete fruits of his investigation of the facts to the other.[Emphasis added] (pp. 261-2) [20] Any meeting between the plaintiffs' investigators and the fire marshal clearly relates to its investigation and is privileged. It follows that any information obtained by the plaintiffs from the fire marshal is also privileged. There is nothing preventing the defendants from obtaining information directly from the fire marshal. Objection No. 7-Question 1399 [21] "Was there any liaison set up between Mr. Bykowy and SPMC and SIAST insurers and their investigators?" [22] Apparently Mr. Bykowy is fire investigator with the City of Saskatoon. I agree with the plaintiffs that the question relates to the manner of the plaintiffs' investigation and is not proper. Once again, questions can be asked of the third party City of Saskatoon. Objection 8-P. 317, Line to P. 318, Line [23] The question asked was: "... is any engineer's report or any engineer's report that was prepared as a result of engineers retained by the plaintiffs' fire investigators, did any of their reports or were any of their reports shared with the City of Saskatoon fire department?" [24] Once again the defendants are seeking details of the plaintiffs' investigation and that information is protected by litigation privilege. Objection No. 9-P. 330, Line 15 to P. 331, Line [25] The question objected to was "... what observations were made of the damage post fire, the damage to the roof and its ... and the attic that would connect the point of breakout to the point where Hagblom were operating or were working?" [26] The plaintiffs' claim in this law suit is in excess of $7,000,000.00. The question is too vague to answer In an application of this nature proper foundation must be laid in the context of specific questions asked and answers given or not given (Hill v. Board of Education of Arcola School Division No. 72, supra). The defendants might ask for example, what wood was burned, where the burned wood was located, whether it was burned on the inside or outside and similar questions. [27] also agree with the plaintiffs that the question appears to be asking for the plaintiffs' expert opinion on burn pattern. The defendants are entitled to disclosure of all facts that are or may be relevant to the determination of the facts in issue. They are not entitled to expert opinion. Objection No. 10-P. 351, Lines 6-14 [28] The question asked was whether SPMC's insurer's investigation team participated in the investigation with the City of Saskatoon fire department investigation team. Again the question relates to the plaintiffs' manner of investigation and is privileged. Objection No. 11-P. 355, Lines 6-18 [29] The defendants wanted to know whether certain documents (statements) referred to in the plaintiffs' statement as to documents and for which the plaintiffs claimed privilege were obtained from the City of Saskatoon fire department. The plaintiffs gave an undertaking to find out whether the plaintiffs' received the statements during the course of their investigation. If they were, they are privileged. In any event the defendants will have the opportunity to examine the City of Saskatoon in the third party claim. Objection No. 13-Question 1557 [30] The defendants asked for the name of the individual who prepared certain drawings by Consolidated Engineering Company, dated June 18, 1997 and which document had been produced to the defendants by the plaintiffs at mandated mediation session. [31] All discussions at the mediation proceedings are strictly confidential. Any questions arising out of anything disclosed during the mediation are clearly improper. [32] Furthermore, the name of the plaintiffs' expert who prepared the drawings in contemplation of litigation is privileged. Objection No. 14-P. 437, Lines 17-25 [33] can find no objection to the questions asked. fail to see why the defendants included this reference in the notice of motion. Objection No. 15-P. 459, Line to P. 461, Line 23 [34] The following exchange took place beginning at line 17 on p. 459 of the transcript: MR. PURDY: Okay. How the Soprema was applied. Then your answer isn't complete because was there any indication on the wall of direct contact between torch and wall? MR. PARTHEV: And it's SPMC's position that there is such indication. MR. PURDY: All right. And what is the observation made indicatingtorch application to wall? MR. PARTHEV: Well see that's-where we get into this distinction between expert opinion because what may look like nothing to you and me, may mean something to an expert who looks at wall, so think you're treading on expert opinion to say the least, and I've always had trouble with these questions because understand we're supposed to supply you with facts, but that line gets pretty blurry when it comes to what is obvious to an expert as opposed to lay person. MR. PURDY: There must have been some physical sign, some chemical sign, some sign of some kind of torch application to wall. MR. PARTHEV: Well you'll get that when the expert opinion is supplied to you- MR. PURDY: Well this- MR. PARTHEV: -in accordance with the rules. MR. PURDY: This is-no, this is physical evidence that was present, whether organic, whether chemical, whether or whatever kind, application of heat to material, results and chemical change. What is it? What was present to indicate the change? [Emphasis added] MR. PARTHEV: Well again, same answer. That stuff would mean nothing to me, but it may mean lot to an expert, so you're asking for an expert opinion. MR. PURDY: No, I'm not asking for an expert opinion. I' asking for the physical state observed with respect to direct heat application. What was there? MR. PARTHEV: Mr. Purdy, we could pull out piece of wood from that wall and it may be charred, but it's up to an expert to say whether it was charred because of blow torch or it happened as result of the fire, so it's totally unfair question. Same with burn marks on the wall, mean it means nothing to just simply say there were burn marks on the wall until an expert says yes, those are propane burn marks and this is why they are. It's my opinion that they are because X, and Z. MR. PURDY: All-well what want to know is X, and Z, if you want to put it that way, the physical characteristics present. MR. PARTHEV: Well again- MR. PURDY: How many times do have to go through that? What were the physical characteristics or the chemical characteristics? MR. PARTHEV: You'll get them all when you get the expert opinion. [35] The plaintiffs' objection that the defendants are really asking for an expert opinion would seem to be borne out by the portion of Mr. Purdy's comments which are underlined. [36] The defendants are entitled to all relevant facts but not opinions. They are entitled to know what was observable to anybody looking at the wall where the Soprema was being applied not to an expert's interpretation of what was observable, for example what chemical change took place. [37] The defendants ought to ask specific questions, for example, whether burn marks were observable, and if so, have the witnesses described the burn marks. In other words, the facts and observations upon which expert opinions are based must be disclosed. That would, in my view, include any photographs taken by the plaintiffs and upon which the plaintiffs' expert may have relied. Objection No. 16-P. 462, Line to P. 463, Line [38] The witness was asked what portion of the wall had torch application. The witness answered (line 2), "I believe it's the northeast corner where they were working off the scaffold up the parapet wall." Counsel for the defendants did not like the answer but nevertheless the witness answered the question. In fact, the witness answered it again at question 1811 when asked "What's that answer?" The witness replied "The answer gave was the northeast corner of the Tower where they had the scaffold set up." Objection No. 17-P. 466, Line to P. 467, Line 19 [39] The question asked was: "Was there any particular pattern on this piece of wood that would indicate contact by propane flame?" agree with counsel for the plaintiffs that the answer to that question requires an expert opinion which the witness is not required to provide. Objection Nos. 18, 19 and 20 [40] The following questions were asked of the witness: (a) Whether there is factual evidence indicating first ignition; (b) What material first ignited; (c) What physical evidence is there of "first ignition". [41] The defendants were advised that the plaintiffs were not there when the fire first started. The question can only be answered by having experts reconstruct what, in their opinion, occurred at the time the fire started. The defendants are not entitled to ask for that expert opinion. In due course they will receive the opinions of the expert witnesses as required by The Queen's Bench Rules. EXAMINATION OF MAURICE ARSENAULT Objection No. 4-P. 262, Lines 3-12 [42] The witness was asked whether "In the 1967 construction of the Tower was there fire stop?" The witness replied that he did not know the answer to that question. He was then asked "What's SPMC's position? Was there fire stop?" The defendants were advised that SPMC has no position one way or the other. [43] If the plaintiffs do not have position know of no rule requiring them to adopt position. They can be required to give an undertaking to provide the defendants with position if they adopt one at later date. Objection No. 5-P. 266, Questions 41 and 42 41 Okay. Now in connection with the question of whether there was fire stop constructed in 1967, are you-do you suggest that better get that information from others, and if that information is in the hands of others, who would have it? have made no suggestion in that regards. 42 That information should be somewhere within the capacity or capability of SPMC to determine? MR. PARTHEV: No, that's not what the witness said, Mr. Purdy. We made it quite clear that this building and SPMC's involvement goes back to 1986, and we've also made it clear that we're not going to search all provincial archives to get you that information. Secondly, that information is not relevant as far as we're concerned to whether your client burned down our building in 1997. It is obvious that the plaintiffs do not have the requested information. There is no obligation on them to seek that information from third parties when the defendants are as capable of obtaining that information as the plaintiffs. It would be another matter if the information was held by third parties under the control of the plaintiffs. If the party being examined has no control over or greater access to witness than the examining party, it need only disclose the evidence known to it. Objection No. 6-P. 268, Questions 47 and 48 [44] The witness was asked whether the parapet roof was constructed in accordance with the detail set out in FC. The witness replied that he did not know. [45] The witness was then asked whether SPMC had position on the matter. The response was that SPMC had no position on the matter. In their brief, filed on this application, plaintiffs' counsel gave an undertaking to advise if and when the plaintiffs develop position. Objection No. 7-P. 273, Line 22 and Objection No. 8-P. 274, Line 10 [46] The witness was shown plaintiffs' document production No. 94(c) which is sketch of the Tower parapet detail and was asked whether the plaintiffs have any position that the detail outlined in that document is right, wrong or otherwise. Although the transcript is not clear as to what the response from the plaintiffs was, the plaintiffs undertook in their argument to advise if and when the plaintiffs develop position. Objection No. 9-P. 310, Question 158 and P. 311, Line 16 158 Might that RFP [request for proposal] be available and can it be provided? The question must be examined by reading the previous question. 157 All right. And do you have or have you seen the RFP for this particular project? No, haven't. have not seen it and do not have it. The witness responds at p. 311 that all long range plans for SIAST Kelsey Campus are contained in document D-10 which has been produced. In my view that does not answer the question. If there is an RFP for Kelsey Campus which relates to the Tower, that document should be produced. If the RFP under discussion only relates to the Regina campus agree with the plaintiffs that the document is not relevant. Objection No. 10-Question 198 [47] The defendants' counsel referred to exhibit D-9 [a standard form contract between SPMC and Architects Collaborative] and in particular to the definition, sub-consulting 1.8. The witness was then asked whether "it was considered anytime that Hagblom Construction would be sub-consultant within the terms of this agreement?" [48] The plaintiffs refused to answer what they considered to be legal question. The objection was well founded, questions as to party's position in law are not proper. The trial judge will eventually interpret the terms of the agreement. Objection No. 11-P. 325, Line 18 to P. 328, Line [49] The defendants' counsel again refers to D-9 and in particular paragraph 3.2 and appears to ask whether Hagblom was retained pursuant to this paragraph. [50] Once again this is legal question. In any event the plaintiffs did advise that their position as to how Hagblom was retained was set forth in paragraphs and of the statement of claim which provide as follows: 8. Pursuant to contract between Hagblom and SPMC, Hagblom removed portion of the brick cladding from the northeast corner of the Tower on November 28, 1996, exposing the surface to facilitate inspection of the masonry construction by structural engineer. Said contract was made between Hagblom and Cochrane Engineering Inc., as agent of SPMC, in part by letter dated November 25, 1996 and in part orally. 9. Pursuant to contract between Hagblom and SPMC, Hagblom further agreed and undertook to supply and install an air vapour barrier to hoard in the exposed surface where the brick had been removed. Said contract was made between Hagblom and Cochrane Engineering Inc., as agent of SPMC, in part by letter dated November 29, 1996 and in part orally. Objection No. 12-P. 333, Question 14 to P. 337, Line [51] The question asked was whether the building was built in accordance with the 1960 fire code when constructed in 1967. The plaintiffs replied that the building did not come into their possession until 1986 or 1987 and they had no knowledge as to whether it was built according to the 1960 fire code. [52] The defendants' counsel then asked if the plaintiffs had position on the matter and requested that if they did not that the plaintiffs research the question and develop position. [53] stated earlier that party is not obliged to develop position. It is required if it later adopts position to advise the other party. The plaintiffs stated that they assumed the building was built according to the code. That was all that they could say. [54] Furthermore, the information is obtainable by the defendants and disagree with defence counsel's suggestion that there is no obligation on the defendants to obtain the information from third parties. refer him to my earlier comments in that regard. Objection Nos. 13 and 14 [55] The plaintiffs advise that these will be answered. Objection No. 15-P. 370, Question 136, Lines 11 to 18 [56] agree with plaintiffs' counsel that it is not clear why the defendants have listed this question. It was agreed that the document to which defence counsel was referring would be marked as an exhibit subject to qualification by the plaintiffs that they wanted to confirm with Mr. Hegel whether he received it or not. There was nothing presented to me to suggest that such confirmation was still an issue. Objection No. 16-Question 163 [57] The question asked was whether Dave Edwards or Jeff Reichert were on the scaffold. The plaintiffs advise that they did not know. [58] The plaintiffs did, in undertaking No. 38, agree that "if SPMC has information as to the identity of architect who inspected parapet during or after brick removal, advise of same." However, plaintiffs' counsel advised that the lawyer acting for the architects has already informed him that his clients will not talk to plaintiffs' counsel now that they are parties. [59] Furthermore, Edwards and Reichert are architects who have been added as third parties by the defendants. Any information that the defendants require can be obtained directly from Edwards and Reichert when they are examined for discovery. Objection Nos. 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, and 27 [60] fail to see why the defendants claim that the plaintiffs objected to answer the questions referred to in the above objections. My reading of the transcript indicates quite clearly that the plaintiffs gave an undertaking to answer each of the questions. (See undertakings 39, 40, 41, 42, 44, 45, 46, 47, 48 and 49). Objection No. 21-Question 200 [61] The question was answered. EXAMINATION OF PAUL NEPPER [62] There were 36 objections taken to questions asked of Mr. Nepper. Three of the questions have been withdrawn by the defendants. The remaining objections, except for objection 35, generally fall into two categories: (a) The defendants are examining on an area being D-10 already canvassed at the examination of Arsenault; (b) The defendants are asking repeat questions in areas already canvassed at the examination of Arsenault. [63] For the reasons which follow I have decided that these objections must fail. If question has already been asked and answered by one of the three proper officers put forward by the plaintiffs, there is no need for the question to be answered second time. It would be an abuse of the process for the defendants to ask the same question of a second officer hoping to obtain a different answer. In that event it is quite proper for the second officer to merely state that the question has been asked and answered by the first officer. If the first officer was unable to answer the question at the time of the examination and gave an undertaking to provide the answer, the defendants ought to wait for the undertaking and not ask the same question of the second officer. If the question was not answered by the first officer, see no reason why the same question cannot be put to the second officer. [64] The fact that there are three separate officers does not restrict the defendants to asking only certain questions of each of the officers. For example, during one exchange counsel for the plaintiffs stated "You are asking questions which ought to have been asked of Mr. Arsenault." Nor can counsel be heard to say that the defendants' counsel is now asking questions that he forgot to ask Arsenault. The fact that the defendants agreed to examine three officers does not mean that they agreed to restrict themselves as to the questions that they could ask each of the three officers. It may well be that defence counsel are asking Nepper questions which either they forgot to ask Arsenault or never thought to ask him at the time he was examined but that does not prevent them from now asking the question of Nepper. [65] The reason for having three officers, each with expertise in certain area, was to prevent the plaintiffs from having to give endless undertakings. Furthermore, the plaintiffs' counsel advises that the defendants would not agree to having all three officers present during each examination. In my view that would have saved not only time, but unnecessary legal fees. can appreciate Mr. Parthev's frustration over the fact that the process is not working as contemplated when it was agreed three officers would be examined. Objection No. 35-Question 542 [66] The plaintiffs say that the question is simply too complicated and that it will be answered if it is broken down. [67] The question asked was whether, referring to exhibit D-54, does SPMC accept that it represents an accurate reconciliation of the work recommended to be done by exhibit D-10 and actually completed in the 1997 renovations. [68] did not have either exhibit D-54 nor exhibit D-10 before me and am therefore unable to determine how complicated question 542 actually is. do note, however, that in the statement of claim the plaintiff SPMC claims fire damage repairs in excess of $4,780,277.43 and emergency repairs of $191,026.14. assume D-54 is referring to those damages as being the 1997 renovations as the fire allegedly occurred January 5, 1997. That being so can understand plaintiffs' counsel's suggestion that the question is too complicated. [69] Defence counsel should be able to break the question down so to enable the plaintiffs to provide the desired answers. THE UNDERTAKINGS [70] The examinations for discovery of SPMC's proper officers has not been completed. The defendants seek an order compelling SPMC to comply with the undertakings given during the course of the examination of all three officers. [71] There are 200 undertakings-60 from Brock, 37 from Arsenault and 103 from Nepper. do not propose to deal with them individually. Suffice it for me to say that as general rule, examinations for discovery should be completed before party being examined is required to comply with the undertakings. If further examinations are required after the undertakings have been complied with, those examinations will be limited to the undertakings. [72] agree with plaintiffs' counsel that some undertakings require considerable amount of time and effort before proper answer can be provided. If the examining party were to be allowed to simply adjourn the examination and demand that the undertakings be then complied with, this would lead to endless delay in examinations. [73] There may be exceptional circumstances where in some cases the court will order compliance with undertakings before the examinations are completed. The defendants have failed to satisfy me that any such exceptional circumstances exist in this case [74] leave the matter of costs to be dealt with by the trial judge.
The defendants brought an application to compel responses to a large number of questions objected to at examinations for discovery of the proper officer for SPMC, and sought an order requiring SPMC to comply with numerous undertakings. The objections were categorized as the questions sought to elicit the plaintiff's manner of investigation or expert opinions; it should have been asked of another witness better suited to answer or third parties as the questions relate to issues between the defendant and the third parties; it was irrelevant or improper. HELD: 1)The plaintiffs were not required to answer questions which would require them to accept or reject an opinion of another party to the action. 2)The plaintiffs should answer what cellulose fibre insulation was present at the time of the fire. 3)The affidavit answered whether Miner was a participant in the investigation notwithstanding the defendants are not entitled to the names of possible expert witnesses at the discovery stage. 4)Any meeting between the plaintiff's investigators and the fire marshal clearly related to its investigation and is privileged. The defendants could obtain the information directly from the fire marshal. 5)The question of whether there was any liaison between the city fire investigator and SIAST was improper as it relates to the manner of investigation. Questions can be asked of the city. 6)Details of the plaintiff's investigation, including an engineer's report, was protected by litigation privilege. 7)The question regarding what observations were made of the damage was too vague. The plaintiff's claim was in excess of $7 million. A proper foundation must be laid in the context of specific questions and answers given or not given (Hill v. Arcola School Division). The defendants are not entitled to expert opinion. 8)Whether SPMC's insurer's investigation team participated related to manner of investigation and was therefore privileged. 9)The defendant will be able to examine the city in the third party claim with respect to documents from the fire department. 10)All discussions at mediation proceedings are strictly confidential. The name of the plaintiff's expert, who prepared the drawings in contemplation of litigation, is privileged. 11)The facts and observations upon which expert opinions are based must be disclosed including any photographs.  12)Whether any pattern on the wood would indicate contact by propane flame required expert opinion. 13)Questions concerning what material first ignited could only be answered by having experts reconstruct what in their opinion occurred at the time the fire started. 14)If the plaintiffs do not have a position (on whether there was a fire stop in the 1967 construction of the tower), there is no rule the court is aware of requiring them to adopt a position. They can be required to give an undertaking to provide a position if they adopt one at a later date. Whether they believed the building was built in accordance with the 1960 fire code when constructed in 1967 was information obtainable by the defendants. 15)If the party being examined had no control over or greater access to a witness than the examining party, it need only disclose the evidence known to it. There is no obligation to seek information from third parties when the defendants are capable of obtaining that information. 16)An undertaking was given to advise if and when the plaintiffs develop a position on whether the parapet roof was constructed in accordance with the detail set out in FC and whether the detail in the sketch of the Tower parapet was correct. 17)If the request for the proposal related to Kelsey, the document should be produced, but if it only related to the Regina campus, the document was not relevant. 18)Whether it was considered anytime that Hagblom would be a sub-consultant was a legal question. The trial judge will interpret the terms of the agreement. 19)Any information required could be obtained directly from the architects who had been added as third parties by the defendants.  20)The plaintiffs gave undertakings to answer the other questions and did not object to answering them. 21)The 36 objections (less 3 that were withdrawn) failed. It would be an abuse of process for the defendants to ask the same question of a second officer hoping to obtain a different answer. The same question can be put if the first did not answer it. The fact there were three separate officers does not restrict the defendants to only asking certain questions of each. The reason for having three officers, each with a different expertise in a certain area, was to prevent the plaintiffs from having to give endless undertakings. Having all three present during each examination would have saved time and unnecessary legal fees. 22)The exhibit was not before the court to determine how complicated the question was. Defence counsel was to break it down. 23)There were 200 undertakings. As a general rule examinations for discovery should be completed before the party being examined is required to comply with the undertakings. It would lead to endless delay if the examining party were allowed to simply adjourn and demand the undertakings be complied with. There were no exceptional circumstances.  24)Costs were left to the trial judge.