Who Can Be Examined for Discovery: The Evolution of Rule 200(1) and its Application Under the Proposed Rules of Court

  • Thomas H. Ferguson, Q.C. Counsel, Fasken Martineau DuMoulin LLP, Calgary.
  • Douglas T. Yoshida Partner, McCarthy Tetrault LLP, Calgary.
  • Kirsten A. Thoreson Associate, Bennett Jones LLP, Toronto.


This article examines the evolution of r. 200(1) of the Alberta Rules of Court, beginning with the first formulation of r. 200(1) in the 1914 Alberta Rules of Court and culminating in its draft form in the Alberta Rules of Court: Test Draft 3. Rule 200(1) allows a party to examine for discovery the employees, former employees, and corporate representative of an opposing party in such circumstances where they have knowledge of the issues between the parties by nature of their employment, without obtaining an order to do so. This article focuses on the present application and interpretation of r. 200(1) by examining the impact of two critical cases on the Rule. Then, the authors undertake a comparison of the present form of the Rule and the new form it will take under the Proposed Alberta Rules of Court. The authors conclude that the proposed Rule contradicts the broad and purposive approach that has been taken to the present Rule by reinstating an additional "best informed" test and adding three additional criteria.