Examinations of Corporate Parties – Who is the mouth piece?

 In Commercial Litigation

When a corporation is a party to litigation in Ontario, a corporate representative is put forward to be examined for discovery on behalf of the corporation. During the examination, the corporate representative is required to answer not only “on their own knowledge”, but also on information and belief.

Recently, in Cimtel Inc. v TSV Holdings Ltd. 2018 ONSC 894, the Ontario Superior Court of Justice examined whether a witness who is being examined for discovery on behalf of a corporation is obliged to answer questions within his or her personal knowledge, regardless of whether that knowledge was acquired by the individual in his or her capacity as an officer, director or employee of that corporation or in some other capacity.

The Court noted that the corporate representative is the “mouthpiece” of the corporation, and it is the knowledge, information and belief of the corporation on which an adverse party is entitled to examine.

Where the corporate representative has not been named personally as a defendant, or where the corporate representative’s knowledge was gained while he or she was associated with another corporation not named as a corporate defendant in the litigation, the corporate representative must only answer relevant questions with knowledge gained in his or her capacity as a director, officer or employee of the corporate party, or by informing him or herself from other employees of the corporation or from corporate records.  The Court found that to permit otherwise would result in the adverse party being able to obtain on discovery the knowledge of a non-party without leave, contrary to Rule 31.10 of the Rules of Civil Procedure.

A corporate representative should inform him or herself from corporate records or from other employees, and the corporation is required to make reasonable inquiries of third parties.  The Court noted that, to the extent that the corporate representative has personal knowledge relevant to the action which the corporate defendant would be required to disclose on discovery in any event, barring some unfairness, it would be more efficient to permit the corporate defendant to provide his or her personal knowledge while being examined for discovery as the corporate representative.  It would be open to the corporate defendant to clarify his or her evidence by testifying as to when and how he or she acquired the personal knowledge and the extent to which he or she communicated that knowledge to any officer or employee of the corporation.

Shauna Cant is a member of the Commercial Litigation team. She can be reached at 613-369-0359 or at shauna.cant@mannlawyers.com.

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