representative work

Cassels Obtains Important Decision on Rights of a Party During the Discovery Process


In reasons dated April 11, 2019, Master Graham of the Ontario Superior Court allowed a motion by Aviva Canada Inc. in which Aviva sought to resolve issues regarding the conduct of Hubio Solutions Inc. (formerly known as Quindell Solutions Inc.) and Ingenie (Canada) Inc. in examinations for discovery. In the broader action, Aviva alleges that Hubio misrepresented that it could provide Aviva with a complete telematics solution (i.e., technology which monitors the location movement, status, and behaviour of motor vehicles) and claims damages.

Master Graham rejected Hubio’s submission that its representative in examination for discovery was not required to consult former employees of Hubio in preparing for examinations for discovery. The test, according to Master Graham, is not whether an employee is still within the control of the corporation, but whether it is unreasonable to require the discovery representative to inform her or himself by making inquiries of the former employee.

At the examination for discovery of Hubio’s representative, Hubio’s counsel gave no undertakings, took questions under advisement, and refused to answer other questions. Master Graham concluded that the refusal to undertake to answer any questions was obstructionist. As a result of this conduct, and the significant overlap between information that Aviva undertook to provide and which Hubio refused to provide which is relevant to the alleged misrepresentations, Master Graham accepted Aviva’s submission that the prospect of Hubio tailoring its evidence was plausible in the circumstances.

Accordingly, Master Graham determined that Aviva ought to be able to defer providing answers to certain undertakings relating to meetings and discussions at which alleged misrepresentations were made until Hubio provides answers to the proper questions he ordered answered (which Hubio had previously refused). In doing so, Master Graham accepted Aviva’s argument by analogy that the case law that allows for the exclusion of a witness from an examination for discovery to prevent prejudice from an opposing party being able to tailor evidence also enables the court to make orders with respect to the timing of disclosure of documents, and ought to include answers to undertakings.

Aviva is represented by Jed Blackburn, Christopher Selby, and Arthur Hamilton, with valued support from Rob Kligman.

A copy of the reported decision can be found here.