Executive Summary: Key Legal and Evidentiary Issues

• The plaintiffs sought leave to examine a second corporate representative of the defendant on the issue of planograms.
   
• Rule 31.03 of the Rules of Civil Procedure governs when a corporate party may be examined more than once.
   
• Established case law requires special circumstances and a strict test before ordering an additional representative examination.
   
• Evidence showed the first representative, Ted Kucera, was not shown to be unwilling or unable to inform himself on the planogram issue.
   
• No refused questions on the planogram topic were identified during the first examination.
   
• Costs of the motion were awarded to the successful responding party.
   

Facts of the case

Aloysius MacNeil was injured on August 2, 2019, while shopping at a Metro Ontario Inc. grocery store, after he lost his balance reaching for an item on a top shelf. He and Susan MacNeil, as plaintiffs, allege the defendant created a dangerous condition by stocking beverages beyond the reasonable reach of customers, and claim damages of $200,000.00 in a simplified procedure action. The defendant denies liability, taking the position that Mr. MacNeil caused his own injuries by reaching for a product outside his reach or by climbing shelving not intended to be climbed. The plaintiffs examined Ted Kucera, the store manager who assisted Mr. MacNeil after the accident, as the defendant's representative for discovery on December 2, 2022. Kucera explained that a planogram maps how products are stocked in a store section and gave undertakings to inquire about the rationale behind planograms and to provide the planogram in effect on the accident date. A lengthy exchange of correspondence followed between 2023 and 2025 regarding production of historical and current planograms; the defendant advised that planograms from 2019 or earlier no longer existed under its one-year data retention policy, though it eventually produced the current planogram and an updated affidavit of documents while maintaining the material was not relevant. The plaintiffs then sought to examine Michael Chiacchia, the employee who prepares the planograms, but the defendant declined to produce a second witness, prompting the motion for leave.

Policy and legislative provisions at issue

The motion turned on Rule 31.03(1), (2) and (4) of the Rules of Civil Procedure. Subrule (1) permits examination of an adverse party once, with further examinations requiring leave. Subrule (2) allows an examining party to examine any officer, director, or employee of a corporation, but permits the court, on the corporation's own motion brought before the examination, to instead order that a different officer, director, or employee be examined; examining more than one such person requires consent of the parties or leave of the court. Subrule (4) requires the court to be satisfied that satisfactory answers on all issues cannot be obtained from one person without undue expense and inconvenience, and that examining more than one person would likely expedite the action.

Reasoning and analysis

Associate Justice McAfee applied the test set out in Little v. Ellerbrock, 2014 ONSC 5945, which draws on several established principles: a second examination is not warranted merely because the proposed witness's evidence is important or that person may be a key trial witness; it is required only where the existing representative cannot or will not satisfactorily inform himself; such orders are rarely granted and demand special circumstances under a strict test; and unsatisfactory prior examination must be shown through unanswered, incomplete, unresponsive, or ambiguous answers, assessed objectively rather than based on the examiner's subjective dissatisfaction. Applying these principles, the court found the plaintiffs had not raised concerns about Kucera's suitability before or during his examination, and that no evidence showed he was unwilling or unable to inform himself, nor were any refused questions on the planogram issue identified. The court also rejected the plaintiffs' argument that requiring Kucera to obtain answers from Chiacchia through undertakings risked a biased response shaped by defence counsel, finding no basis for that submission and noting that giving undertakings is not unusual on discovery. The court further observed that even if Chiacchia had greater personal knowledge of planogram preparation than Kucera, that alone is not the applicable test.

Ruling and overall outcome

The motion for leave to examine a second representative was dismissed, with the court concluding the plaintiffs had not established that satisfactory answers could not be obtained from Kucera without undue expense and inconvenience, or that examining Chiacchia would likely expedite the action. Metro Ontario Inc., as the successful responding party, was awarded costs of the motion fixed in the all-inclusive amount of $5,000.00, payable by the plaintiffs within 30 days.