In an action, examinations for discovery typically involve the parties to the proceeding being examined by counsel. However, there may also be other people who are not parties to the proceeding that have knowledge or information that is relevant to the issues in dispute. Where a party seeks to examine for discovery someone like that, the Court may grant leave for them to do so under certain circumstances. This is exactly what the plaintiffs in De Miranda et al. v. King, 2026 ONSC 4520 sought to do. Ultimately, the Court dismissed the plaintiff’s motion to examine the non-party for discovery.
Background
In De Miranda, the plaintiffs, who were husband and wife, commenced an action against the husband’s mother, Anne, for a declaration that they were the legal and beneficial owners of the property located in Hamilton, Ontario (the “Property”).
The plaintiffs allege that they came to an agreement with Anne whereby they would purchase the Property and Anne could live there independently, as Anne had limited means. The alleged agreement was that Anne would be registered on title as a joint tenant along with the plaintiffs but that she would hold her interest in trust for the plaintiffs, who were at all times the beneficial owners. The plaintiffs and Anne purchased the Property on March 9, 2007 and retained a lawyer to act on the purchase.
In the action, the plaintiffs claimed that Anne breached the terms of their agreement by unilaterally severing the joint tenancy on January 21, 2022. Anne passed away in 2023, and her son, as the estate trustee of her estate, defended the claim.
After examinations for discovery of the parties, the plaintiffs sought to examine the lawyer who acted on the purchase of the Property as a non-party.
The Law and Analysis
The statutory authority for examining non-parties for discovery is found at rules 31.10(1) and (2) of the Rules of Civil Procedure, which state:
“31.10 (1) The court may grant leave, on such terms respecting costs and other matters as are just, to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.
(2) An order under subrule (1) shall not be made unless the court is satisfied that,
(a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
(b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
(c) the examination will not,
(i) unduly delay the commencement of the trial of the action,
(ii) entail unreasonable expense for other parties, or
(iii) result in unfairness to the person the moving party seeks to examine.”
Rule 31.10(1): The Court found that the lawyer would have “information relevant to a material issue in the action” given that they were retained to complete the purchase of the Property and one of the core issues was what the terms of the agreement were between the plaintiffs and Anne regarding the purchase of the Property. The lawyer was not an expert engaged by one of the parties, and would therefore fit the description of this subrule.
Rule 31.10(2)(a): In this analysis, “there must be a refusal, active or constructive, to obtain the information” before the plaintiffs will be able to meet the onus of showing that they have been unable to obtain the information they seek from that person.[1]
In the specific circumstances of this case, the issue of waiving solicitor-client privilege became central to this determination.
The plaintiffs argued that this onus had been satisfied because Anne had died, her son had no personal knowledge of the agreement between the plaintiffs and Anne, Anne’s son refused to waive solicitor-client privilege, and the lawyer would not attend an examination for discovery unless that privilege is waived or a Court order was obtained. The plaintiffs took the position that the lawyer should be examined for discovery and be permitted to disclose privileged information.
With respect to the issue of solicitor-client privilege, the plaintiffs argued that the defendant’s waiver was not required because, as parties to the joint retainer, there was no privilege between the plaintiffs and Anne. They argued that Anne’s son was an integral party to the alleged agreement which formed the basis for the purchase of the Property and that he was entitled to the disclosure of the privileged communications.
Anne’s son objected to the disclosure of privileged information to him as he was not a party to the joint retainer with the lawyer. The Court was satisfied that there was a sufficient refusal from Anne’s son to allow the plaintiffs to obtain the information they sought from the lawyer. However, the Court found that that, in and of itself, does not automatically entitle the plaintiffs to obtain such information.
While the plaintiffs conceded that “(s)olicitor-client privilege belongs to the client, endures after death, and is protected”, they argued that such privileged communications may be disclosed in exceptional circumstances. The plaintiffs relied on many cases to support their position that the disclosure of the privileged communications by the lawyer would provide evidence of Anne’s intentions at the time the Property was acquired, and it may corroborate the plaintiffs’ evidence. However, the Court found that the cases relied on were either distinguishable or not applicable in the circumstances. The full decision goes into further detail about case law that touches on waiving solicitor-client privilege. Further, the Court disagreed that exceptional circumstances existed to allow for the disclosure of privileged information by the lawyer.
The Court stated that where the document/transaction in question involved the deceased person alone and the intentions of the deceased when entering into such documents becomes an issue, “the evidence of the lawyer who took instructions from the deceased is of vital importance to assist the Court in determining the issue, and it is likely to be the only evidence which can shed any light on the issue”.
However, that was not the case here. The plaintiffs were also a party to the transaction and were aware of the discussions that took place with the lawyer at the time. As a result, the lawyer was not the only person who had the information that the plaintiffs sought; they had the relevant information themselves. Moreover, the Court found that the issue of whether the lawyer’s evidence would corroborate the plaintiffs’ evidence was not a relevant consideration when considering whether to grant leave to examine the lawyer.
For those reasons, the Court found that the plaintiffs did not meet the requirements of rule 31.10(2)(a) and denied leave to examine the lawyer.
Nevertheless, the parties agreed that the lawyer would be a compellable witness at trial. The Court noted that it would be up to the trial judge to determine the extent to which the lawyer may give evidence at trial.
Takeaway
De Miranda provides a helpful refresher on when the Court may or may not grant leave to examine a non-party for discovery. The Court will undertake a careful analysis of whether the information that the party seeks to obtain through the examination can be found elsewhere such that the examination of the non-party is not necessary. Although the analysis ended at the first factor of rule 31.10(2), the Court went on to briefly touch on the remaining two factors, which the reader can find at paragraphs 53 and 54 of the decision if they are interested.
[1] Famous Players Development Corp. v. Central Capital Corp., 1991 CanLII 7202 (Ont. Div. Ct.).
