"If the camel once gets his nose in the tent, his body will soon follow."

Motions under Rule 21.01(a) proceed on the pleadings only and without evidence “except with leave of a judge or on consent of the parties” (R21.01(2)).

Based on this one might expect that an examination of a witness on a pending motion under Rule 39.03(1) would be unavailable absent prior leave of a judge or consent of the parties.

That view would be wrong according to a Divisional Court decision granted last week but just now available -- Manulife Securities International Ltd. v. Société Générale (Canada), 2008 CanLII 19790.

In a nutshell the Divisional Court, in declining to grant leave to appeal from a motion judge’s decision to allow the examination, said it was possible evidence that could be used would result from the examination and so it ought to proceed.

The Court held the motions judge was correct in saying the examination should go ahead:

[8] The Motions Court judge declined to set aside the summons to witness because he found "a reasonable possibility that some of the evidence may have some relevance". That was because of the particular facts surrounding the circumstances giving rise to the respondent's claims. The Motions Court judge stated "I am not prepared to say at this stage in the circumstances of the nature of the claims made by the investors through Manulife that there can be no relevance on the rule 21 motion". In short, the Motions Court judge found that the evidence to be elicited by the examination of the witness pursuant to the summons was potentially relevant to the rule 21.01(1) (a) motion.

Some might say that the decision in Manulife Securities International Ltd. v. Société Générale (Canada) raises the risk that witnesses may be examined more commonly on Rule 21 motions thus raising cost and delay. Moreover, the existence of a transcript will encourage the Court to allow evidence – if something relevant is available the Court will naturally want to see it to have the fullest picture possible. And if a transcript is there perhaps an affidavit or two might also be in order???

The Court disagreed this was an issue saying:

[10] The applicants submit that rule 21.01(1) (a) motions are intended to be decided in a preliminary fashion, when determining a question of law which is raised by a pleading may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs. The applicants argue that the Motions Court judge's decision is contrary to these principles because it opens the floodgates by permitting early examinations for discovery in respect of such questions, thereby threatening both the purpose of the rule and its benefits.

[11] I do not accept the latter submission. It is not the Motion Court judge's decision, it is rule 21.01(2)(a) which creates the limited evidentiary opportunity which the respondent seeks to utilize. There is no basis for the suggestion that rule 21.01(2)(a) has opened the floodgates to abuse of this limited evidentiary opportunity. Further, if it becomes more common for rule 21.01(1) (a) motions to be met by a summons to witness, litigants and the court have ample means to ensure that this procedure has been implemented for proper reasons. For example, on a motion to set aside the summons, the court will consider whether the evidence likely to be obtained is potentially relevant. If not, the summons will be set aside with costs consequences. If the summons stands and the witness is examined, the examination may be confined to proper grounds by implementing the procedure mentioned in rule 34.14(1), including the significant costs sanctions available pursuant to rule 34.14(2). Once the evidence has been elicited, unless the parties consent to its admission at the hearing of the rule 21.01(1)(a) motion, it is inadmissible pursuant to rule 21.01(2)(a) except with leave of a judge.