Sartor v. Toby's Good Eats
Toby's Good Eats et al.
 O.J. No. 5643
Court File No. 96-CU-108638
Ontario Court of Justice (General Division)
March 31, 1999.
Practice -- Persons who can sue and be sued -- Individuals and corporations, status or standing -- Class actions, certification, evidence and proof -- Class actions, procedure.
Motion by the plaintiff for leave to examine a witness on a certification motion.
HELD: Motion allowed in part. The only issue relevant to the certification motion on which examination was allowed was that of class definition.
Statutes, Regulations and Rules Cited:
Ontario Rules of Civil Procedure, Rule 39.02(2).
Vincent Genova, Joel P. Rochon and Raymond G. Colautti, for the plaintiff.
No other counsel mentioned.
1 SHARPE J.:-- In my view, the only issue relevant to the certification motion on which examination should be allowed of the proposed witness is that of class definition which in turn, relates to the contents of menus at various times. I am not satisfied that apart from that issue, the plaintiff should be allowed to examine the proposed witness. To allow a broader range of questions would effectively permit the plaintiff to have an early discovery.
2 Leave should be granted persuant to rule 39.02(2) in view of the very limited knowledge of the deponent Kristenbrun and the fact that Orived was apparently in charge of day to day operations. I do not think it appropriate to restrict the plaintiff to written questions. Mr. Orived has refused to talk to the plaintiff's solicitors and they are entitled to examine him on the area identified above rather than to engage in written interrogatives. The plaintiff is to make reasonable effort to accommodate Orived's schedule.
3 Costs of the Motion to reserved and to be dealt with on the certification motion.