Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought to examine the CEO of the defendant on a pending motion before a ruling was made.

• Defendant argued the examination was inappropriate and constituted an abuse of process.

• The court declined to impose a timetable order for the motion, urging counsel to rely on the Rules.

• Examination request was found premature and an attempt to bypass the proper motion process.

• The proposed questioning blurred impermissibly with discovery issues that were yet to be decided.

• The request was dismissed, and any related summons was quashed without costs addressed.

Background and procedural context

The plaintiff in this case brought a wrongful dismissal action against RBC Dominion Securities Inc. As part of the ongoing litigation, a procedural dispute arose concerning whether the plaintiff could examine Mr. David Agnew, the CEO of the defendant, as a witness on an upcoming motion. The defendant had already scheduled a motion seeking to substitute Mr. Stephen Harrop, a branch manager who had direct dealings with the plaintiff, as the appropriate witness for discovery instead of Mr. Agnew. That motion was set to be heard on August 20, 2025.

Dispute over witness examination

Shortly after the defendant served its motion record, the plaintiff notified the defendant of the intention to examine Mr. Agnew under Rule 39.03 as a witness on that very motion. At a case conference held on July 10, 2025, the plaintiff sought a court order compelling the examination of Mr. Agnew in advance of the pending motion and also requested a timetable for delivering materials on the motion.

Court’s treatment of the timetabling request

The court declined to issue a timetable order for the pending motion. It emphasized that the court system does not generally micro-manage the scheduling of regular motions and expects counsel to cooperate or default to the timelines set out in the Rules of Civil Procedure. The judge declined to intervene further in the scheduling process, noting that counsel were mostly in agreement and that mechanisms already existed to manage scheduling disputes.

Analysis of the examination request

The central issue addressed was whether it was appropriate to compel Mr. Agnew’s attendance for examination on the pending motion. The plaintiff argued that Mr. Agnew should be examined not for the merits of the case, but to explain what knowledge he has (or lacks) about the plaintiff’s employment, and to clarify why being examined would be oppressive. The court rejected this argument, finding that such questioning effectively sought to pre-empt the very motion that was scheduled to resolve the matter of Mr. Agnew’s suitability as a witness.

The judge held that compelling Mr. Agnew to testify under Rule 39.03 on the pending motion was an “abuse of process,” designed to circumvent the issue at stake in the defendant’s substitution motion. The court found that any distinction between the scope of Mr. Agnew’s knowledge and the substance of that knowledge was artificial and unworkable, calling it a “distinction without a difference.” Allowing the examination would amount to an improper “end run” and a likely “fishing expedition.”

Outcome and conclusion

The court refused the plaintiff’s request to examine Mr. Agnew as a witness on the motion and quashed any summons issued to that effect. It further noted that such contested issues are generally inappropriate for determination at a brief case conference, but ruled on the merits to prevent unnecessary delays in a highly contested matter. No costs were awarded at that stage, though the parties were invited to raise the issue during the hearing of the upcoming motion.