Mr. Meronek of D'Arcy and Deacon wrote back to me shortly thereafter, with a copy to Mr. Corlett, indicating that he would oppose any attempt on my part to examine Mr. Corlett on behalf of the University; that there were other current employees who would be more suitable as the University's designate on Examination for Discovery, and further, that my attempts to reschedule discovery were in any event premature pending the resolution of his appeal on the Summary Judgement motion.
I think Mr. Meronek was wrong to write that letter. The Queen's Bench Rules on Examination for Discovery state that when a corporation (which is to say, the U of W) is being examined, the examining party (that's me) is entitled to name the person to be examined, who can be a present or former employee (that would be Mr. Corlett).
I don't know why the rules are written that way. Probably because often there is a lapse of time between the filing of a claim events and the examinations, so that in the natural course of events employees come and employees go. But then there is the possibility of the "disgruntled ex-employee" scenario. The officers of the corporation are naturally going to be hostile to the party who is suing them, and will be very guarded in what information they are willing to divulge on discovery. In the case of an ex-employee, however, not necessarily. That is of course the reason why I chose to name Mr. Corlett as the University's designate, and that is undoubtedly why Mr. Meronek is so vehemently opposed to my selection. I don't know if Mr. Corlett is disgruntled. For all I know, he may be perfectly gruntled (although the tone of Mr. Meronek's response leads me to think otherwise.) But in either case he is no longer under the strict control of the U of W, so there is the possibility that I might get something out of him that I wouldn't get if I examined, say, Lloyd Axworthy. That's worth something to me.
What can Mr. Meronek do about it? In fact, the Queen's Bench rules do allow him to oppose (on a motion) my choice of examinee. But I'm not sure he'd succeed in such a motion. The rules, after all, specifically allow me to choose whom I will examine; if they also allow him to oppose that choice, surely it must be on the basis of something more than "we don't want Mr. Green to examine Mr. Corlett".
These are all interesting questions, and it's hard to say exactly where we're going with this. (And there are of course things that I could say but I won't for strategic reasons.) What I found objectionable about Mr. Meronek's letter was that it seemed to me, at least, to imply that there was something improper about me trying to examine Mr. Corlett...and in conveying that impression to Mr. Corlett, he was in effect making it more difficult to obtain his cooperation as a witness.
I didn't think that was fair play, so I wrote back to Mr. Meronek, with a copy to Mr. Corlett, insisting that Mr. Meronek write back to Mr. Corlett with a more explicit statement of his duties in the event that I were to subpoena him, including a stipulation that it was my right to designate Mr. Corlett as the University's representative.
And I told him if he didn't, I would consider filing a complaint with the Law Society.
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When I started writing about this yesterday, I said I didn't want to start posting excerpts from people's confidential correspondence. But I think I'm going to have to make an exception here. I've already posted the gist of what Mr. Meronek wrote me, and I've criticized what I called the "implication" of his remarks. So it really isn't fair of me to leave it at that. Here, then, is the text of the letter of Mr. Meronek which I objected to:
Marty;
We will oppose any attempt to have John Corlett examined. He is no longer
associated with the U of Winnipeg & there are other current employees who
have the requisite knowledge. In any event, as you are aware , we are appealing
the decision of the Master & you are also facing a Summary Judgment motion
from the other Defendants. Until those proceedings are resolved , it is
pre-mature to arrange Examinations for Discovery.
Brian.
And while we're at it, for the record, here is how I responded to this letter:
Dear Mr.
Meronek:
I am
concerned that your letter of this morning, which you copied to Mr. Corlett, may
have given him the impression that he is not required to appear for examination,
even if I proceed to subpoena him; or at the very least, that there is something
improper about my attempts to examine him for
discovery.
If this is
indeed how you, as an officer of the court, wish to advise Mr. Corlett, then I
think you ought to say so explicitly; in which case, I will consider filing a
complaint with the Law Society; I am not a lawyer, but I would think such advice
would constitute a form of obstruction of justice. Otherwise, I would urge you
to advise Mr. Corlett that under the Queen's Bench
Rules:
i) that I
am indeed entitled to name an employee, past or present, as the
university's designate for purposes of discovery;
ii) that
having filed my Affidavit of Documents last year, I am now entitled to proceed
to oral discovery;
iii) that
notwithstanding your appeal of Master Berthaudin's recent decision, there are at
present no outstanding interlocutory motions in this matter which would entitle
you to an automatic stay of proceedings.
Ordinarily
it would not be my place to make demands as to how and when you ought to advise
a third party; but in the present circumstances, where your letter has so
severely compromised my legitimate rights to discovery, I do not see what lesser
remedy would be sufficient.
Perhaps you
have other advice which you feel justified in offering Mr. Corlett; that is your
right. In any event, if you do not satisfy me that you are taking immediate
steps to correct what I believe is a very wrong impression that you have given
Mr. Corlett, then I will proceed accordingly.
I hope you
understand my position in this matter.
Marty
Green
