“FLRs 20(4) and (5) permit the questioning of a third party provided that the conditions in (5) have been met:
(4) In a case other than a child protection case, a party is entitled to obtain information from another party about any issue in the case,
(a) with the other party’s consent; or
(b) by an order under subrule (5).
(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
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- It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
- The information is not easily available by any other method.
- The questioning or disclosure will not cause unacceptable delay or undue expense.
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- Would it be unfair to proceed without questioning?
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To test unfairness, the Court must review the materiality of the information sought by questioning. Here, the relevant and material evidence that can be sought from Dr. Ricci deals with the allegations of abuse by the Applicant during the marriage.
Regarding “unfairness”, Justice Brown stated in Tsakiris v. Tsakiris (2007), 2007 CanLII 44184 (ON SC), 161 A.C.W.S. (3d) 221, 45 R.F.L. (6th) 186 (Ont. Sup. Ct.) at paras. 14-15:
[14] I see this as permitting questioning of non-parties in a potentially broader range of circumstances than obtaining their evidence for trial, including securing evidence for use on a motion.
[15] How should the court assess “unfairness”? At least in the context of a motion seeking leave to examine a non-party, I think the starting point must be a consideration of the materiality of the information sought to an issue or issues in the proceeding. If questioning were not permitted, would the party be deprived of the opportunity to secure material evidence relating to an issue in the proceeding or that could have a material effect on the determination of an issue in the proceeding, be it on a motion or at the trial? Put another way, without the information from the non-party would the party lack material evidence lying outside his or her control that would be required to establish an element of its claim, whether on a motion or at trial?”