Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff alleged breach of contract due to failure to construct a patio and storage area as agreed in the commercial lease.

• Discovery complications arose when the defendants’ initially scheduled representative became unavailable for medical reasons.

• The substitute representative lacked personal knowledge on key issues, impairing the plaintiff’s ability to obtain relevant information.

• Defendants argued against further discovery, stating the plaintiff already had one opportunity and that the representative later informed himself.

• The court considered the upcoming trial date and the practicality of conducting a second discovery.

• A second examination was granted to ensure fairness, allowing the plaintiff to question a witness with direct knowledge before trial.

Facts of the Case

Café Crema Inc., the plaintiff, operates a café and entered into a commercial lease agreement with the defendants, Benevolent Realty Enterprises Ltd. and Praedium Property Management Ltd., operating as Transpacific Realty Advisors. The dispute centers around the defendants’ alleged failure to construct an exterior patio and a storage area as promised under the lease agreement. The plaintiff further alleges that the defendants acted in bad faith, leading to a damages claim totaling $1.6 million. A 13-day trial was scheduled to begin on April 7, 2025.

The plaintiff initially sought to examine Cheryl Vale, a key employee of the defendants, for discovery, as she was directly involved in the management of the leased premises. However, multiple scheduled discovery sessions with Ms. Vale were cancelled—first by the plaintiff, then due to her medical unavailability. As a result, the plaintiff examined another employee, Mr. Fram, who had limited direct knowledge of the central issues. During his discovery, Mr. Fram repeatedly deferred key questions to Ms. Vale.

Procedural Dispute and Court Analysis

After learning that Ms. Vale was again medically fit shortly before trial, the plaintiff requested a second examination for discovery—this time of Ms. Vale—citing her first-hand knowledge and the inadequacy of Mr. Fram’s responses. The defendants objected, arguing that only one discovery is permitted, and that Mr. Fram had since informed himself and responded to many questions through counsel.

The court analyzed the situation using principles from earlier decisions including Century 21 Canada Limited Partnership v. Real Estate Webmasters Inc. and North Star Properties v. B.C. (Transportation and Infrastructure). Key considerations included the responsiveness and knowledge of the original examinee, whether he took adequate steps to inform himself, and the practicality and efficiency of allowing further discovery.

Outcome

The court found that the plaintiff had met the legal standard for compelling a second discovery. It emphasized that Mr. Fram’s lack of direct knowledge, the short time before trial, and the nature of the case justified the need to examine Ms. Vale. Her central role and expected testimony at trial made it unreasonable to prevent the plaintiff from questioning her in advance. The court therefore ordered that Ms. Vale attend discovery during the week of March 31, 2025, with appropriate medical accommodations. Costs of the application were awarded to the plaintiff in the cause.