http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/143250/index.do
Cuddy v. The Queen (March 29, 2016 – 2016 TCC 76, Jorré J.).
Précis: This is a decision on a scheduling motion for an examination for discovery. The Crown wanted the schedule to provide for follow-up questions arising out of answers to undertakings. The taxpayer objected on the basis that such questions would amount to a second examination for discovery which cannot be conducted without an order of the Court. The Tax Court found that follow-up questions are inherent in the discovery process and accepted the Crown’s position.
There was no order as to costs.
Decision: The Tax Court found that follow-up questions are permitted so long as they can be said to properly arise out of the answers to undertakings:
[6] The Respondent is also correct that proper follow‑up questions to undertakings do not amount to a second discovery. Rule 95(2) deals with undertakings. It states:
(2) Prior to the examination for discovery, the person to be examined shall make all reasonable inquiries regarding the matters in issue from all of the party’s officers, servants, agents and employees, past or present, either within or outside Canada and, if necessary, the person being examined for discovery may be required to become better informed and for that purpose the examination may be adjourned.
[7] The second part of rule 95(2) clearly provides that, after a person has informed himself, the discovery may be resumed thereby placing the examining party back in the position that the examining party would have been in had the answer been available immediately without the need for the examinee to undertake to find the answer.
[8] Thus, there is a general right to ask follow‑up questions resulting from answers to undertakings. However, that right in itself does not open the door to additional discovery beyond follow‑up questions. It is also worth bearing in mind that discovery is always subject to the supervision of the Court.
[Footnotes omitted]
As a result the scheduling order provided for follow-up questions. There was no order as to costs.