The Court dismissed an application to strike three appointments to examine for discovery. The underlying action concerns a claim for negligence against a firm of solicitors arising from a missed filing date with respect to obtaining a U.S. patent. The Plaintiffs sought to strike the appointments for examination for discovery on the basis that they relate to individuals who are neither parties to the action, nor are they adverse in interest to the Defendants.
The Court noted that the three persons the Defendants seek to discover, or examine for discovery, were assignors of some right to the invention to the Plaintiff, the assignee. Therefore, the issue before the Court, was whether Rule 7-2(7) of the British Columbia Rules should be given a more broad interpretation as sought by the Defendants to capture the three individuals. The Court stated that there are two threshold factors for the right to examination of an assignor: 1) the party proposing to conduct the examination must establish that the person to be examined has assigned a right or an interest in property that is relevant to the action or a right of an action itself to be entitled to an examination; and 2) the assignor must show some material evidence relating to an issue in the action that might be obtained from the person it seeks or they seek to examine. The Court concluded that there was a right for the Defendants to examine the three individuals. However, the Court limited it to questions as to the nature of the invention itself and any contribution directly or indirectly that the three individuals may have made to the instructions that were given to the solicitor.