IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
R.A.B. Properties Ltd. v. Canadian  
Horizons (182A) Development Corp.,  
2022 BCSC 1716  
Date: 20221003  
Docket: S1813271  
Registry: Vancouver  
Between:  
And  
R.A.B. Properties Ltd.  
Plaintiff/Defendant by Counterclaim  
Canadian Horizons (182A) Development Corp.  
Defendant/Plaintiff by Counterclaim  
Before: The Honourable Mr. Justice Veenstra  
(via videoconference)  
Reasons for Judgment  
Counsel for the Plaintiff/Defendant by  
Counterclaim:  
D.P. Church, K.C.  
J. Zhong  
Counsel for the Defendant/Plaintiff by  
Counterclaim:  
S. Griffin  
K. Marsh  
Counsel for the Attendee, John Robbie:  
Place and Date of Hearing:  
S. Warnett  
Vancouver, B.C.  
February 4, 2022  
Place and Date of Judgment:  
Vancouver, B.C.  
October 3, 2022  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 2  
Table of Contents  
INTRODUCTION ....................................................................................................... 3  
BACKGROUND FACTS............................................................................................ 3  
The Contract........................................................................................................... 3  
The Subdivision Process........................................................................................ 4  
The Action .............................................................................................................. 5  
The Role of Mr. Robbie .......................................................................................... 6  
LEGAL CONTEXT................................................................................................... 11  
Standard of Review.............................................................................................. 11  
Rule 7-2(5)(c)(ii) ................................................................................................... 13  
THE JUDGMENT APPEALED FROM..................................................................... 20  
POSITIONS OF THE PARTIES............................................................................... 23  
The Plaintiff .......................................................................................................... 23  
The Defendant...................................................................................................... 24  
Mr. Robbie............................................................................................................ 25  
ANALYSIS............................................................................................................... 25  
CONCLUSION......................................................................................................... 33  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 3  
Introduction  
[1]  
The plaintiff appeals from an order of a Master made July 7, 2021, by which  
the plaintiff’s appointment to examine Mr. John Robbie for discovery as a  
representative of the defendant was struck. The Master, whose reasons for  
judgment are indexed at 2021 BCSC 1320, concluded that Mr. Robbie was not  
acting as the defendant’s agent within the meaning of Rule 7-2(5)(c)(ii) of the  
Supreme Court Civil Rules.  
[2]  
The plaintiff asserts that the decision of the Master was wrong in law and  
clearly wrong in its application of the law to the undisputed facts.  
[3]  
The defendant asserts that the Master identified the correct legal test, that her  
application of the test to the facts of the case is not clearly wrong, and that as a  
result, the appeal should be dismissed.  
Background Facts  
The Contract  
[4]  
The present action arises from a contract of purchase and sale with respect to  
13 building lots (the “Building Lots”) in a subdivision that was being developed by the  
defendant. The plaintiff intended to purchase the lots, construct homes on them, and  
then resell them.  
[5]  
The contract was entered into on July 11, 2017, between the plaintiff as  
purchaser and the defendant as vendor. It provided that the vendor would be  
responsible for:  
(i) obtaining the subdivision of the Parent Property in order to create the  
Building Lots substantially as shown on the Subdivision Concept Plan  
(provided, however, the Purchaser acknowledges, agrees and accepts  
that each Building Lot may have to be changed slightly in size or  
configuration if required by the Approving Officer for the City) (the  
“Subdivision of the Property”);  
(ii) completing the installation of the Site Services for the Building Lots (the  
“Servicing of the Property”) as soon as reasonably practical following the  
Subdivision of the Property and in any event, within 270 days after the  
Subdivision of the Property; and  
     
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 4  
(iii) all costs and expenses related to the Subdivision of the Property and the  
Servicing of the Property …  
[6]  
Completion was to take place the later of (i) 20 days after notice in writing that  
the defendant had completed Servicing of the Property, and (ii) 20 days after notice  
in writing that the City of Surrey (“the City”) had confirmed it is prepared to authorize  
building permits for improvements on the remaining lots.  
[7]  
Pursuant to the contract, the plaintiff paid a deposit of just over $1.1 million.  
Entitlement to that deposit is the main subject of this action.  
The Subdivision Process  
[8]  
The defendant retained a firm of professional engineers, Aplin & Martin  
Consultants Ltd (“Aplin & Martin”). Mr. Robbie acted as Project Manager on behalf of  
Aplin & Martin with respect to the work done by Aplin & Martin for the defendant. The  
exact scope of the retainer appears to be a matter of some dispute. Unfortunately,  
no retainer agreement is in evidence. What can be gleaned from the documents in  
evidence is discussed below.  
[9]  
The defendant also retained a contractor, B&B Contracting Group (“B&B”), to  
perform site servicing work including site preparation of the lots and the installation  
of site services. The B&B agreement was not in evidence, and it is not known  
whether Aplin & Martin was assigned any role in administration or decision-making  
with respect to the work of B&B.  
[10] Subdivision was achieved on January 2, 2018. As a result, the defendant was  
to complete Servicing of the Property by September 29, 2018 (270 days later).  
[11] On July 2, 2018, the plaintiff wrote to the defendant “to bring to your attention  
certain concerns”. After identifying various issues, the letter concluded that:  
We understand the requirements of the City of Surrey however the state of  
the current clearing is not acceptable from our perspective under the terms of  
our Agreement of Purchase and Sale. We believe the intention of the Tree  
Protection plan is for the area to be cleared of all vegetation down to the floor  
surface of existing grade except for designated retained trees, designated  
trees removed and a covering (5-10 CM) of wood chips spread.  
 
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 5  
[12] There ensued a series of emails between the plaintiff and the defendant over  
the balance of July 2018.  
[13] On September 2, 2018, the plaintiff wrote a letter to the defendant, noting that  
“we have a fundamental disagreement regarding the clearing of the Building Lots, as  
demonstrated by our exchange of emails on the subject”. The letter concluded by  
asserting that:  
This letter constitutes notice under the Purchase Agreement that in their  
current condition the Vendor has failed to meet its obligations under Section  
4.1 of the Purchase Agreement to complete the Servicing of the Property. …  
If the state of clearing of the Building Lots is not rectified within the relevant  
period, RABP will consider such failure to be a repudiation of the Purchase  
Agreement …  
[14] On September 28, 2018, the defendant wrote to the plaintiff, referencing the  
purchase agreement, and stating:  
1. we hereby notify you that we have (a) completed the servicing of the  
Property and (b) received confirmation from the City that the City is prepared  
to authorize the issuance of building permits for improvements on the  
Building Lot(s); and  
2. we confirm that the “Completion Date” under the Purchase Agreement will  
be October 18, 2018 (being 20 days after we have notified you of items 1(a)  
and 1(b) above and being the date on which the completion of the purchase  
and sale of the Building Lot(s) will take place).  
The letter identified October 18, 2018, as the completion date.  
[15] By letter dated October 10, 2018, the plaintiff advised that it refused to accept  
the notice provided in the September 28 letter and set out six alleged failures of the  
defendant to complete the servicing of the Building Lots.  
[16] The contract did not complete and the defendant sold the subject lots to  
others.  
The Action  
[17] The present action was commenced on December 11, 2018. Both the plaintiff  
and the defendant (by way of a counterclaim) assert entitlement to the deposit.  
 
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 6  
[18] The pleading before the Master was the amended notice of civil claim filed  
April 2, 2019 (the “ANOCC”). In it, the plaintiff alleges that:  
a) The defendant failed to complete the Servicing of the Property by the  
deadline; and  
b) The defendant failed to comply with conditions of an Erosion and  
Sediment Control Permit.  
[19] With respect to the September 28, 2018 letter asserting that Servicing of the  
Property had been completed, the ANOCC asserts that:  
a) Such servicing had not been properly completed at the time of the letter;  
b) No Certificate of Completion had been issued by the City; and  
c) To the extent the City had confirmed that it would authorize the issuance  
of building permits, it did so based on inaccurate information provided by  
the defendant to the City.  
[20] The ANOCC pleads that it was an implied term of the purchase agreement  
that information provided to the City would be accurate.  
[21] In Part III of the ANOCC, the plaintiff pleads among other things that:  
a) The defendant was required to complete Servicing of the Property within  
270 days, it failed to do so, and as a result the agreement expired; and  
b) The Building Lots were not graded in accordance with the approved Lot  
Grading Plan.  
The Role of Mr. Robbie  
[22] As noted above, Mr. Robbie is a professional engineer employed by Aplin &  
Martin. He was designated as Project Manager with respect to this project, applied  
his seal to drawings where required, and was the signatory of key letters issued by  
Aplin & Martin.  
 
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 7  
[23] The documents in the materials include a “Letter of Authorization” from 2016  
by which the owners of the development property authorized Aplin & Martin:  
to act as an authorized agent on my/our behalf on all matters pertaining to  
the application for the above-noted property/properties and to act as Project  
Manager for the application and therefore the sole person of contact.  
[24] An “Online Development Inquiry” form with respect to the various applications  
made to the City with respect to development of the subject properties describes  
Aplin & Martin as the “primary contact” on behalf of the owners.  
[25] The evidence includes the City of Surrey’s “Engineering Land Development  
Customer’s Manual”. It appears to be common ground that this manual describes  
the City’s expectations and requirements with respect to the development of a  
subdivision like that in issue in this case. It describes the roles of various parties,  
including the following:  
3.0  
Roles and Responsibilities  
The Engineered Land Development process has three major “players” in  
delivering the Servicing Agreement and all the other items required for a  
complete development. They are: the Developer, his Consultants and his  
Contractor; the Planning and Development Department; and the Engineering  
Department. These groups work concurrently to complete the subdivision. It  
is the responsibility of all these parties to work to deliver a quality  
development. The roles of these parties are described in this section of the  
Manual.  
3.2  
City  
3.2.1 Engineering  
… It is not the responsibility of the land development staff to complete the  
design of the works and services or to approve the technical and financial  
merits of the design. The design and construction of the accepted works and  
services is the responsibility of the Developer and his Consultant.  
3.4  
Consultant Professional Engineer  
The Consultant is responsible for his design and meeting the works and  
services requirements of the City prior to execution of the Servicing  
Agreement. The consultant must be aware of the City’s by-laws, policies,  
practices and procedures including the engineering design criteria and  
supplementary specifications and standard drawings. The Consultant must  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 8  
also meet the requirements of many external agencies as required in the  
completion of his design. The City expects that the Professional Engineer will  
carry out his work in accordance with the requirements of the Professional  
Engineers and Geoscientists of BC. The City relies on the capabilities of the  
professional to protect both his client and the City in the design of works and  
services that will ultimately become the ownership of the City. High quality  
submissions by the Consultant throughout the Servicing Agreement process  
will be of great help in the timely processing of the project.  
[26] An appendix to the manual includes a standard form “Letter of Responsibility”  
to be provided by the developer’s consultant to the City. It includes the following:  
1.  
I have been retained by the Developer to prepare and certify designs  
including as-constructed drawings and documents; to carry out construction  
survey, construction field reviews and field coordination; to perform as the  
Contract Administrator as defined in the Master Municipal Construction  
Documents for the Project; and will make complete submissions in  
accordance with the current process outlined in the City of Surrey  
Engineering Land Development Customer Manual.  
3.  
I am responsible for representing the Developer with respect to all  
technical aspects of the Project to the City of Surrey. I shall obtain all  
necessary information to fulfill my responsibilities to the City of Surrey for the  
Project.  
10.  
I understand and agree that the Developer will transfer all of the  
Works and Services installed and constructed pursuant to the Project to the  
City of Surrey and that the City of Surrey is relying on my expertise to design,  
inspect, certify and commission these Works and Services in accordance with  
the Servicing Agreement for the Project and this Agreement.  
[Emphasis added.]  
[27] The Works and Servicesreferenced in s. 10 are presumably those installed  
on or under the streets and sidewalks, rather than anything done on the lots to be  
sold to builders like the plaintiff.  
[28] During the course of the project, it appears that Mr. Robbie provided oversight  
of the construction work undertaken by the defendant’s contractor, B&B, submitted a  
number of inspection reports to the defendant and to the City, and completed  
various certificates as required by the City.  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 9  
[29] There appears to be no dispute that all of the services provided by Aplin &  
Martin were paid for by the defendant.  
[30] Mr. Robbie, through counsel, participated in both the hearing before the  
Master and the present hearing, opposing the application that he be examined for  
discovery. He submitted an affidavit dated October 16, 2020, opining that he was not  
an agent of the defendant. The Master correctly disregarded Mr. Robbie’s statement  
of his opinion, but did consider the balance of his evidence.  
[31] Mr. Robbie stated the following in his affidavit:  
2. Aplin & Martin acts [as] an independent consultant in commercial,  
industrial, and residential developments. Our role is that of a professional  
consultant to engineering works. We act as the conduit between the  
municipality and the developers.  
3. The consultant is engaged to act on behalf of both the Developer and the  
relevant municipality. For this project, our role is defined in the  
Engineering and Land Development Manuel [sic] for the City of Surrey.  
4. The City relies on the capabilities of the professional to both his client, in  
this case, Canadian Horizons (182A) Development Corp. (“Canadian  
Horizons”), and the City of Surrey.  
5. Attached … is a true copy of the Engineering Land Development Manual  
for the City of Surrey.  
6. Our role is to help the Developer navigate the by-laws and guidelines of  
the relevant municipality.  
7. We do not act on the directive of the Developer, they provide us with a  
plan for what they would like to achieve, we assist them to help determine  
if it is in accordance with the by-laws and guidelines of the City.  
8. In this matter we were engaged by Canadian Horizons. We acted strictly  
in accordance with City and municipal guidelines as well as in accordance  
with the Engineers and Geoscientists of British Columbia codes of ethics.  
[32] The evidence indicates that Mr. Robbie prepared, or at least approved, the lot  
grading plan and the erosion and sediment control plan.  
[33] It indicates as well that Mr. Robbie provided various documents to the City,  
including certifications, with respect to the sewer system, lot grading, and  
construction deficiencies. These generally took the form of letters addressed to the  
City and copied to the defendant.  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 10  
[34] Among the documents is a letter dated August 8, 2018, by which Mr. Robbie  
wrote to the City certifying that the rough lot grading had been completed in  
accordance with the lot grading design submitted to the City in December 2017 (with  
one exception, being a lot not at issue in this action).  
[35] It appears that disagreements subsequently arose between Aplin & Martin  
and the contractor, B&B. The application materials include an email of  
September 20, 2018 some six weeks after the August 8, 2018, letter to the City –  
from Aplin & Martin’s project coordinator to B&B, which was copied to Mr. Robbie as  
well as representatives of the defendant. It stated:  
A concern was raised by one of the builders regarding additional fills  
seemingly deposited on his lots. Due to the nature of his concern, and how it  
was raised, we felt it necessary to survey said lots (14-21) in question. Our  
review indicates that there is approximately 625 cu. m of additional fill  
materials on Lots 14-21. This material should be removed to ensure that the  
lot grades are in compliance with the proposed design. This is a relatively  
time sensitive matter, so your attention to this issue is appreciated.  
Lots 14-21 are among the lots that were the subject of the contract between the  
plaintiff and the defendant.  
[36] B&B replied that same day, asserting it had met all of its contractual  
requirements. Aplin & Martin responded, stating:  
The intent of the drawings was to bring the lots back to the original grade(s)  
condition. Per our road sections and grading plan, the interior of Lot 14-21  
(after the 3:1 cut slope) was to maintain the existing lot grades. Based on the  
survey data, this condition wasn’t met; additional fill over and above the  
design drawings has been placed on these lots and must be removed.  
[37] There ensued further email correspondence over the next several days. On  
October 2, 2018, Mr. Robbie wrote to the defendant stating:  
As discussed, Aplin Martin stands behind their review of Lots 14-21 and the  
assertion that cut is required to get the site to original condition. Please see  
attached sketches to back the claim.  
[38] On October 16, 2018, the defendant wrote to B&B stating the following:  
Hey guys, we are not going to undertake ant (sic) further lot grading at 182.  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 11  
[39] The plaintiff says that these emails indicate that Mr. Robbie is particularly  
knowledgeable about the lot grading issue at the relevant time, as well as the City’s  
other requirements. It is keen to explore that direct knowledge, rather than examine  
an officer of the defendant who will be providing evidence based on what he has  
been told by others (and in particular by Mr. Robbie).  
Legal Context  
Standard of Review  
[40] This is an appeal from a Master.  
[41] The leading statement of the applicable test on such an appeal is in Abermin  
Corp. v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188, 1990 1352  
(S.C.), where Justice Macdonald said:  
An appeal from a Master's order in a purely interlocutory matter should not be  
entertained unless the order was clearly wrong. However, where the ruling of  
the Master raises questions which are vital to the final issue in the case, or  
results in one of those final orders which a Master is permitted to make, a  
rehearing is the appropriate form of appeal. Unless an order for the  
production of fresh evidence is made, that rehearing will proceed on the basis  
of the material which was before the Master. In those latter situations, even  
where the exercise of discretion is involved, the judge appealed to may quite  
properly substitute his own view for that of the Master.  
[42] The approach where the appeal is based on an alleged error of law was  
reviewed in Northland Properties Ltd. v. Equitable Trust Co. (1992), 71 B.C.L.R. (2d)  
124, 1992 2360 (S.C.), where Justice Fraser stated:  
The authorities reviewed by Macdonald J. deal with the appellate role in  
reviewing a discretion exercised by a Master. There is a different procedural  
dynamic in a judgment involving the exercise of discretion than there is in a  
decision on a point of law, such as the one appealed from here. A decision  
involving an exercise of discretion always involves consideration of the facts  
and rarely has implications for the general law. The "clearly wrong" standard  
recognizes this and is based on practical considerations having to do with the  
proper allocation of court time. A decision on a point of law, by contrast, has  
implications for other cases and other litigants. To adopt the "clearly wrong"  
standard on an appeal from a decision on a point of law would mean that an  
incorrect (but not clearly wrong) interpretation by a Master of a point of law  
would stand ── and presumably be binding on other Masters ── but would  
remain vulnerable to a different interpretation by a judge, in a later case.  
   
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 12  
Why, the defendants ask, should the correct interpretation await a later case?  
I find no answer to this question.  
The policy concerns which call for limited judicial review of the decisions of  
Masters do not apply to decisions of pure law. I conclude that a judge of this  
court sitting in appeal on a point of law from a Master has a conventional  
appeal jurisdiction, in which the legal issue may be argued and decided on  
the merits.  
[43] In that case, the order under appeal assessed the amount of conduct money  
that was to be paid to a professional witness who was to be examined for discovery  
as a former agent of the plaintiff. While the question was clearly interlocutory in  
nature, its determination depended on a point of law whether the court had  
discretion to order a daily witness fee beyond the $20.00 amount provided in an  
appendix to the Rules of Court. Justice Fraser allowed the appeal on the basis that  
the Master had erred with respect to that point of law. He concluded that a Master  
cannot exercise a discretion that does not exist, and the existence of a discretion is  
a question of law reviewed on a correctness standard.  
[44] To similar effect is the decision of Justice Williams in Joubarne v. Sandes,  
2009 BCSC 1413. In that case, the Master had declined to order production of  
documents from an earlier proceeding in which the plaintiff in the present personal  
injury case had claimed against a former employer for wrongful dismissal. Justice  
Williams concluded that the Master had erred in concluding that production was  
barred by the implied undertaking rule. In dealing with the question of standard of  
review, he noted the test as outlined in Abermin, and that the parties before him  
disagreed on whether the order that had been made was “vital to the final issue in  
the case”. At paras. 13-14, he described the approach he would take as follows:  
[13]  
In this case, I have concluded that the matter of the characterization is  
not vital to the adjudication of the appeal. I will assume, without deciding, that  
the decision is interlocutory and not final in nature. If it were final, I would  
proceed as a re-hearing and would be permitted to substitute my own view  
for that of the master. However, I decline to deal with the matter in that  
fashion for the reasons I have indicated.  
[14]  
Nevertheless, even though I will treat the decision as interlocutory in  
character, this Court is not necessarily obliged to defer to the master’s  
conclusion. If the decision is one of straightforward discretion, then, certainly,  
substantial deference is required. However, if the decision of the master  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 13  
involves a question of law, the standard of review must be correctness even  
though the matter involves an interlocutory issue such as the production of  
documents.  
[45] He noted that this approach was supported by the words of Fraser J. in  
Northland Properties (as quoted above), and concluded at para. 16:  
[16]  
In the present case, the master made his decision based upon an  
interpretation of the law as set out in the decision of the Supreme Court of  
Canada in Juman. In my view, it follows that this Court, sitting on appeal,  
should exercise a conventional appellate jurisdiction in which the legal issues  
may be considered and decided on their merits.  
[46] In Maedou Consulting Inc. v. 0887455 B.C. Ltd., 2016 BCSC 2246, Justice  
Pearlman dismissed an appeal from an order of a Master which concluded that the  
plaintiff had not waived privilege by filing an affidavit of its lawyer. At paras. 21-22,  
Pearlman J. helpfully distinguished the applicable standard when errors of law are  
alleged on such an appeal:  
[21]  
Failure to apply the correct legal test for waiver of privilege, or reliance  
on irrelevant considerations would constitute an error of law, which is  
reviewable on a standard of correctness: Cliff v. Dahl, 2010 BCSC 1998 at  
para. 21.  
[22]  
The question of whether the Master misapplied the correct test for  
determining whether there was an implied waiver of privilege is a question of  
mixed fact and law, reviewable on a standard of palpable and overriding  
error: Mayer v. Mayer, 2012 BCCA 77 at para. 188. On this question of  
mixed fact and law, the appellant bears the onus of establishing the Master's  
decision was "clearly wrong".  
[47] In this case, the submissions of the parties raise questions of whether:  
a) The error ultimately alleged involved application of an incorrect legal test  
or misapplication of the correct legal test;  
b) The decision of the Master is vital to the final issue in the case; and  
c) The decision of the Master is, in any event, clearly wrong.  
Rule 7-2(5)(c)(ii)  
[48] Rule 7-2(5) provides that:  
 
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 14  
(5) Unless the court otherwise orders, if a party to be examined for discovery  
is not an individual,  
(a) the examining party may examine one representative of the party to  
be examined,  
(b) the party to be examined must nominate as its representative as  
individual, who is knowledgeable concerning the matters in question in  
the action, to be examined on behalf of that party, and  
(c) the examining party may examine  
(i) the representative nominated under paragraph (b), or  
(ii) any other person the examining party considers appropriate and  
who is or has been a director, officer, employee, agent or external  
auditor of the party to be examined.  
[Emphasis added.]  
[49] Rule 7-2(5)(c)(ii) identifies the class of people that may be chosen by an  
examining party as the representative of a corporate party to be examined for  
discovery.  
[50] The question of who is an “agent” for purposes of this provision has been the  
subject of commentary in a series of judgments that have refined the applicable test.  
[51] In Karl’s Sporthaus Ltd. v. Allstate Insurance Co. of Canada (1983), 44  
B.C.L.R. 169 (C.A.), the plaintiff sued its insurer for refusing coverage after a fire  
destroyed a retail store. The plaintiff sought to examine for discovery the insurance  
adjuster hired by the defendant insurer to investigate the loss. The chambers judge  
had declined to order that examination, concluding it was a discretionary matter and  
that he would not make the order because the statements of the adjuster would not  
be binding as admissions against the insurer. The appeal was allowed, with Craig  
J.A. commenting at para. 6 that:  
[6]  
A party wishing to examine a person who comes within the category  
mentioned in the subrule may examine such a person as of right, subject, of  
course, to the provisions of subrule (5). Any issue regarding an examination  
will relate: (1) to whether a person comes within any of the categories  
mentioned; or (2) to whether some person other than the one sought to be  
examined should be examined. It may be, as counsel for the respondent  
suggests, that the judge did not mean that the right to examine under subrule  
(4) was subject to a discretion on the part of a judge but that is what he  
appears to say. He seems to say, also, that the adjuster could be classified  
as an "agent" within the meaning of the rule. If so, I think that he should not  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 15  
have refused to make the order for the examination of Shalovel simply  
because his evidence would not be "binding on the defendant". A  
fundamental purpose of an examination for discovery is to obtain evidence in  
the form of admissions which will assist the examining party's case or  
prejudice the opposite party's case, but that is not the only purpose. An  
important purpose, also, is to obtain information relating to the matters in  
issue. This information may tend to narrow and define the issues between the  
parties even though it may not necessarily be binding. It has been said  
countless times that an examination for discovery is a searching cross-  
examination limited to the issues raised by the pleadings. Such examination  
properly conducted will tend to reveal the strength and weaknesses of each  
party's case and will tend, therefore, to limit and define the issues.  
[52] Justice Craig noted that the defendant’s position in the litigation would in large  
part depend on what its adjuster had concluded. He concluded:  
[7]  
Having regard to the fact that the avowed purpose of the new Rules  
is to bring about the "just, speedy, and inexpensive determination of every  
proceeding on its merits", I am inclined to think that the plaintiff should be  
permitted to examine Shalovel for discovery …  
[53] Having considered this and other authorities, in Uukw v. B.C. (1986), 7  
B.C.L.R. (2d) 396 at 399, Locke J. (as he then was) commented:  
It is my view that “agent” for the purposes of discovery is not necessarily to  
be decided by the principles of classic agency but rather by decisions of this  
Province made under the Rules of Court, examples of which I have  
previously quoted …  
[54] The scope of the word “agent” in the context of a representative for discovery  
was again before the Court of Appeal in Penderville Apartments Development  
Partnership v. Cressey Development Corp. (1990), 43 B.C.L.R. (2d) 57,  
1990 CarswellBC 15 (C.A.), in which the plaintiff sought to examine a lawyer who  
had acted for the defendants during negotiations of the impugned contract.  
Southin J.A. concluded that:  
The learned judge below founded his determination on Mr. MacRae having  
no power to bind his client. That power does, of course, create one kind of  
agency. But there is another kind. As Halsbury puts it in the 3d. ed., Vol. I, at  
p.147:  
The word "agent" in addition to meaning a person employed to create  
contractual relations between two parties is used in at least two other  
senses. Further, it is frequently used to describe the position of a person  
who is employed by another to perform duties often of a technical or  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 16  
professional nature which he discharges as that other's alter ego and not  
merely as a conduit pipe between the principal and the third party. Thus a  
solicitor is his client's agent for the purpose of instituting or continuing  
legal proceedings on his behalf. Similarly where a person (not being a  
servant) is permitted by the owner of a vehicle to drive it, whilst the owner  
retains possession thereof, the driver is the owner's agent for the purpose  
of rendering the owner civilly liable for driver's negligence or breach of  
duty in driving. Generally, wherever one person lawfully delegates to  
another his common law or statutory duties, that other person is in law his  
agent for the purpose of rendering the principal civilly liable for the  
defaults of the agent. Thus a person who carries out an extra-hazardous  
operation for another is his agent for that purpose, as a contractor  
employed by a local authority to perform any of the functions which it may  
properly so delegate.  
In my view, anyone who does something for another is for that very limited  
purpose an "agent". That it seems to me is the rationale of the judgment of  
this Court in Karl's Sporthaus Ltd. v. Allstate Insurance Company of  
Canada (1983), 1983 385, 44 B.C.L.R. 169. In that secondary sense,  
Mr. MacRae was, at the time in question, the agent of his client and, thus, is  
within the literal meaning of Rule 27(4). It follows that the appellant is entitled  
to obtain an appointment to examine Mr. MacRae. The appointment being  
obtained and served, the Rule requires that the person to be examined "shall  
attend and submit to examination".  
[55] The case of Can-Dive Services Ltd. v. Pacific Coast Energy Corp., [1992]  
B.C.J. No. 529 (S.C.), involved a complex marine construction project. Can-Dive  
was a subcontractor whose job was to perform certain underwater work with respect  
to structural support for an underwater pipeline. The project was owned by Pacific  
Coast, which contracted with Westcoast Energy to manage the project. Westcoast  
Energy in turn contracted with Intec Engineering to perform design work. It was  
alleged that Intec Engineering designed the work that Can-Dive was to perform.  
Can-Dive had claimed directly against Intec Engineering, but those claims had been  
in part dismissed and in part stayed. However, Can-Dive sought to examine a  
Mr. Foster, an engineer with Intec, as a representative of Westcoast Energy. Can-  
Dive asserted that only Mr. Foster had direct knowledge of the matters raised by  
Can-Dive’s claims of inadequate design. Can-Dive asserted that Mr. Foster was an  
agent of Westcoast Energy as that term had been defined by Southin J.A. in  
Penderville Apartments.  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 17  
[56] Master Tokarek concluded that Mr. Foster could be examined as an agent,  
noting that in the documents before the court:  
… Intec is referred to as being "employed" by Westcoast. Further, Westcoast  
assigned Intec as its "duly authorized representative". The document further  
provided that Intec was authorized by Westcoast to act only as Westcoast's  
representative and not as principal. Intec was authorized to delegate. The  
contractor was required to follow instructions from Intec "as if issued by"  
Westcoast. Intec was also responsible for the supervision and inspection of  
the design, construction, manufacturer, commissioning, start-up and testing  
of the project and any subjects related to the design and construction plan of  
the project were required to be approved by Intec "on behalf of" Westcoast.  
Page 10 contains a number of other provisions relating to what authority Intec  
had.  
[57] In Borek Construction Ltd. v. South Peace Electric Ltd., [1999] B.C.J.  
No. 3013, 1999 7017 (S.C), the defendant sought to examine two consultants  
retained by or on behalf of the plaintiff to investigate the cause of a fire at the  
plaintiff’s premises. Master Horn, in very brief reasons with no reference to past  
authorities, concluded that:  
[2]  
These two persons were outside consultants retained by the plaintiff  
for the purpose of determining the cause of a fire at premises owned by the  
plaintiff. The plaintiff claims damages against several defendants including  
South Peace Electric Ltd. arising out of that fire. These persons were not  
employees of the plaintiff. They carried out no duties as the alter ego of the  
plaintiff and they were not therefore agents of the plaintiff and cannot be  
examined under Rule 27(4).  
[58] The Owners, Strata Plan LMS 923 v. Appia Developments Limited, 2004  
BCSC 233, was a leaky-condo case, in which a defendant wanted to examine for  
discovery an engineer (Mr. Kyle) whose firm had been retained by the plaintiff strata  
corporation to investigate water leaks, and later to provide design and administer  
contracts for renovation work. Mr. Kyle was also the plaintiff’s main expert witness.  
[59] Justice R.R. Holmes noted at para. 10 that:  
[10]  
It is clear that the agent within Rule 27(4) is to be defined and  
interpreted in the broad view and in the context of the procedural aspect of  
the Rules of Court and not confined to its general meaning in law.  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 18  
[60] Having cited the test in Penderville Apartments, Justice R.R. Holmes  
concluded with respect to Mr. Kyle that:  
[12]  
I accept that Mr. Kyle did a wide variety of things for the plaintiff  
encompassing many matters germane to the issue of building deficiencies,  
remediation and damages of the plaintiff. I consider within the context of this  
action and given the expansive interpretation, Mr. Kyle comes within the  
meaning of an agent in Rule 27(4).  
[13]  
He was acting as the plaintiffs' agent to undertake and deal with many  
matters that technically and administratively the plaintiffs could not perform  
themselves. I do not accept that he could not be an agent for the plaintiff  
when part of his contractual duties under his designation as consultant in the  
remediation contract required that he be impartial between the plaintiff and  
the contractor when adjudicating certain differences between the parties that  
might arise.  
[14]  
I agree with counsel for the applicant that the agreement considered  
as a whole placed Mr. Kyle, when acting as consultant, within the ambit of  
agency with the plaintiff. At minimum his duties were mixed. He was there  
as the plaintiffs' consultant to give directions and make decisions that the  
plaintiffs were not capable of themselves. It is, of course, clear in respect of  
the applicant that he is not to be examined in relation to his opinions, and it is  
only in relation to his observations and knowledge of factual matters of  
relevance.  
[Emphasis added.]  
[61] The most recent in the series of cases on the use of the word “agent” in  
Rule 7-2(5)(c)(ii) is Rossco Ventures Ltd. v. British Columbia, 2006 BCSC 212; aff’d  
2007 BCCA 36. Rossco performed a highway construction contract for the Province.  
It commenced an action against the Province for damages and other relief arising  
out of the contract. The excavation of the roadway, the placement of aggregate and  
the installation of culverts were subcontracted by Rossco to Steelhead Excavating  
Ltd. The Province took out an appointment to examine for discovery the principal of  
Steelhead, Mr. Hinchliffe, on the basis that Steelhead was Rossco's agent. Rossco  
applied to strike out the appointment and argued that its president, Mr. Smith, should  
be examined instead. Justice McEwan’s order, set out at para. 15, was that:  
[15]  
The appointment to examine Mr. Hinchliffe is set aside. It appears  
that Mr. Smith is the appropriate representative to examine. The plaintiff shall  
make him available, unless there is reason, within the Rule, for the defendant  
to seek an appointment with someone else.  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 19  
[62] The order of McEwan J. was appealed. In the Court of Appeal, Lowry J.A.  
noted at para. 6 that:  
[6]  
The judge recognized that the question of "agency" must be  
addressed in accordance with the principles of law that have developed in  
relation to the rule, which are broader than those of the classic law of agency,  
citing Uukw v. British Columbia (1986), 14 C.P.C. (2d) 290 (B.C.S.C.), and he  
quoted from Penderville Apts. Development Partnership v. Cressey  
Development Corp. (1990), 43 B.C.L.R. (2d) 57 (C.A.) where Southin J.A.,  
with whom Wallace J.A. agreed, expressed the view, at page 66, that "…  
anyone who does something for another is for that very limited purpose an  
'agent'."  
[63] Justice Lowry noted at para. 7 the following excerpt from the reasons of  
McEwan J.:  
[13]  
A sub-contractor is clearly someone "who does something for  
another." That is the point of the contract. I think there is a distinction,  
however, between someone who occupies the position, even ephemerally, of  
an alter ego, and someone whose relationship is subordinated to contract. In  
this case, Rossco's relationship to the defendant was defined by its  
contract. Rossco remained responsible for the work it or its sub-contractors  
performed as between it and the defendant. Absent an express or implied  
delegation to Steelhead. [sic] It cannot be said that the contractual  
relationship between Steelhead and Rossco makes Steelhead an alter ego or  
a representative of Rossco. On that score, the evidence of Mr. Lewis that he  
"considered" Mr. Hinchliffe to be acting on Rossco's behalf, based on his  
interpretation of Mr. Smith's behaviour, and on a remark that the defendant  
was free to speak to him on matters affecting Steelhead, falls short of  
establishing any such delegation.  
[64] Justice Lowry concluded at paras. 16-17 that:  
[16]  
I accept that, to the extent the words employed permit, it is desirable  
the rule be interpreted in a manner that will best ensure efficiency in  
discovery proceedings. However, I do not consider the relationship between  
Mr. Hinchliffe and Rossco to be comparable to that between either the  
solicitor or the adjuster and the parties that engaged them in the Penderville  
Apts. and Karl's Sporthaus cases which, of the authorities cited, appear to  
lend the greatest support to the Province's position. Mr. Hinchliffe was the  
principal of the subcontractor, Steelhead. Neither he nor his company was  
engaged to represent the party to be examined either in negotiations or to  
obtain information, as were the solicitor and the adjuster respectively.  
Mr. Hinchliffe's function was to administrate the performance of the  
subcontract for Steelhead and, as such, he had, in the words of O'Halloran  
J.A., no connection with Rossco that I consider could be said to render him  
an "agent" of that company in any permissible sense for the purpose of  
discovery.  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 20  
[17] I consider the broad statement made by Southin J.A. in  
the Penderville Apts. case is to be taken to mean that anyone who does  
something for another in a representative capacity (as in that case) is for that  
very limited purpose an "agent" within the meaning of the rule regardless of  
whether that person was authorized to affect contractual relations.  
[65] The Court thereby limited the scope of the test, as previously enunciated by  
the broad statement of Southin J.A. in Penderville Apartments, to require that the  
alleged agent is doing something for another in a representative capacity.  
The Judgment Appealed From  
[66] The Master identified the matter at issue as being the scope of the word  
“agent” as used in Rule 7-2(5)(c)(ii). At para. 19, the Master identified six key cases  
that consider the meaning of the word “agent” for the purposes of Rule 7-2(5)(c)(ii).  
Each of those cases is discussed above.  
[67] The Master noted at para. 30:  
[30]  
A point of contention on this application is whether “alter ego” should  
still be considered a part of the definition of “agent” or whether  
“representative capacity” is the only phrase that survives to date. Counsel for  
RAB submits that the definition of “agent” does not mean “alter ego”. Counsel  
for Canadian Horizons submits that “alter ego” is incorporated into the  
definition because of its inclusion in the Halsbury’s quote in Penderville, and  
because no case authority since Penderville has determined that “alter ego”  
is no longer a part of the definition. Rossco quotes Penderville which in turn  
quotes Halsbury. It was in the context of the Halsbury quote that Southin J.A.  
suggested that “anyone who does something for another is for that very  
limited purpose an “agent”: Rossco, para. 14. Therefore, I conclude that “alter  
ego” is still part of the definition of agent. However, the dispute on this point  
is, in my view, inconsequential because there is little meaningful distinction  
for present purposes between “alter ego” (literally, “other self” in Latin) and  
“person acting in a representative capacity”. The essence of both phrases is  
that a person acting in a representative capacity for another person has a  
shared identity and a commonality of interests with that other person.  
[Emphasis added.]  
[68] Having referenced various documents referring to Mr. Robbie as an agent,  
the Master commented at para. 37 that:  
[37]  
The words “authorized agent” and “project manager” do not, in and of  
themselves, establish agency within the meaning of the examination for  
discovery rule. The definition of “agent” has to do with what the  
 
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 21  
person does for another person, rather than how the person is labelled.  
Whether Mr. Robbie is an agent must be determined from the entire context  
of his relationship with both Canadian Horizons and the City, and the tasks  
that he performed.  
[69] She noted at para. 10 that examination for discovery is to be a searching  
cross-examination but limited to the issues raised by the pleadings. Having reviewed  
the pleadings, the Master commented at para. 17:  
[17]  
It is the certification process that lies at the heart of the allegations  
against Canadian Horizons. Although Mr. Robbie is not named explicitly in  
the amended notice of civil claim, it is his conduct and his statements to the  
City that RAB attacks.  
[70] She noted the importance of Mr. Robbie’s role and his evidence at para. 40:  
[40]  
RAB says that Canadian Horizons cannot escape the conclusion that  
it is bound by the certifications Mr. Robbie submitted to the City. RAB’s expert  
criticizes the certifications for lot grading and the installation of sodded  
swales. Clearly, it is the certifications that counsel for RAB seeks to examine  
Mr. Robbie on because the certifications are at the heart of the litigation. If  
Mr. Robbie is ordered to submit to an examination for discovery, counsel for  
RAB intends to question Mr. Robbie on his review and certification of the lot  
grading. I doubt that the examination for discovery will be limited to “obtaining  
information and narrowing the issues”.  
[71] The Master returned to the “alter ego” issue at paras. 42 and 44:  
[42]  
The City requires a certification from a person who is not the  
developer. The certification must be provided by someone who is  
independent of the developer who cannot then be the developer’s  
“representative” or “alter ego”. The requirement that the certifications be  
marked with the engineer’s professional seal is an indication of the  
importance of the opinion being provided by an independent professional and  
not as a representative of the developer.  
[44]  
RAB points to a paragraph in the Letter of Responsibility that says: “I  
am responsible for representing the Developer with respect to all technical  
aspects of the Project to the City of Surrey. I shall obtain all necessary  
information to fulfill my duties to the City of Surrey for the Project.” (emphasis  
added). The word “representing” has the same root as “representative” in the  
phrase “representative capacity” and may therefore lead to the erroneous  
conclusion that “representing” as used in the Letter of Responsibility is the  
same definition of “agent” within the examination for discovery rule. However,  
the two sentences quoted above read together, and in the context of the  
Letter of Responsibility as a whole, make it clear that the engineer (in this  
case, Mr. Robbie) owes duties to the City to certify in his professional opinion,  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 22  
under his engineer’s seal, that Canadian Horizons has performed the work  
required by the City.  
[72] The crux of the Master’s analysis is found at paras. 47-49:  
[47]  
In my view, when Mr. Robbie was providing certifications to the City,  
he was not “doing something” for Canadian Horizons “in a representative  
capacity”. Quite the opposite: he was “doing something” for the City, acting  
independently from Canadian Horizons to fulfil duties owed to the City.  
Although Canadian Horizons needed the certifications in order to move  
forward with the project, Mr. Robbie did not act on the direction of Canadian  
Horizons. Indeed, it would be a breach of Mr. Robbie’s professional duties to  
follow Canadian Horizons’ instructions. (To be clear, there is no evidence that  
Canadian Horizons attempted to influence Mr. Robbie in the fulfillment of his  
duties to the City).  
[48]  
The certifications were provided as part of Mr. Robbie’s duties to the  
City. The “misrepresentations” that RAB alleges Canadian Horizons made to  
the City were the certifications provided by Mr. Robbie as an independent  
professional engineer performing his duties to the City, not as Canadian  
Horizons’ agent.  
[49]  
I have determined that Mr. Robbie was not Canadian Horizons’ agent  
when he was providing certifications, including when he was performing tasks  
necessary for the development of his professional opinions that went into the  
certification process. The “facts” that counsel for RAB seeks to examine  
Mr. Robbie on are inseparable from the opinions themselves. For example,  
when Mr. Robbie, or other employees of Aplin & Martin, were advising B & B  
about the lot grading required or when Mr. Robbie emailed Canadian  
Horizons on October 2, 2018 stating Aplin & Martin “stands by their review of  
Lots 14–21”, those tasks were part of the certification process.  
[Emphasis added.]  
[73] The Master acknowledged that Mr. Robbie also undertook inspections of the  
work of the contractor. With respect to that, she concluded at para. 55:  
[55]  
In my view, the inspection role Mr. Robbie fulfilled is similar to his  
certification role. When providing his professional opinions as “Inspector”,  
Mr. Robbie was not acting as Canadian Horizons’ agent, but rather as an  
independent advisor to the City in accordance with his duties to the City as  
set out in the schedule to the Letter of Responsibility. The communications  
between Mr. Robbie and the City about the facts underlying the remaining  
allegations are inextricably intertwined with the development of Mr. Robbie’s  
opinions and advice contained in his inspection reports and therefore do not  
establish an agency relationship between Mr. Robbie and Canadian  
Horizons.  
[74] Thus, she concluded at para. 57:  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 23  
[57] I have determined that Aplin & Martin and Mr. Robbie are not  
Canadian Horizons’ agents within the meaning of the examination for  
discovery rule. Therefore, the issue of the exercise of discretion to set the  
appointment aside on the grounds of prejudice to Canadian Horizons or to  
Mr. Robbie does not arise.  
[58]  
RAB’s appointment to examine Mr. Robbie for discovery is struck. I  
order that Canadian Horizons’ representative, Gordon Cameron, will be  
examined instead.  
[75] There is no explanation as to why the Master simply substituted  
Mr. Cameron, rather than provide the plaintiff with an opportunity to select an  
alternative witness.  
Positions of the Parties  
The Plaintiff  
[76] The plaintiff argues that the Master’s decision was wrong in law and clearly  
wrong in its application of the law to undisputed facts.  
[77] The plaintiff emphasizes the numerous documents in which Mr. Robbie and  
his firm are identified as an “authorized agent” or as representing the developer.  
[78] The plaintiff says that the Master was wrong in law in adding new legal  
requirements for an agent pursuant to Rule 7-2(5)(c)(ii):  
a) A requirement that the “agent” not concurrently owe duties to others, and  
b) A requirement that the agent have a “shared identity and commonality of  
interest” with the party to the litigation.  
[79] The plaintiff says that the law requires simply that the “agent” for purposes of  
Rule 7-2(5)(c)(ii) be someone who “does something for another in a representative  
capacity”. The plaintiff says to add a new requirement that would prevent  
examination of an agent who also owes duties to someone else is an error of law.  
The plaintiff references cases in which lawyers, engineers and accountants have  
been examined as agents despite owing duties as professionals.  
   
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 24  
[80] The plaintiff also argues that the requirement of a “shared identity and  
commonality of interest” goes beyond and is contrary to the results in earlier cases,  
and would effectively eliminate most professionals as a potential “agent” within the  
Rule.  
[81] The plaintiff further argues that the Master’s order will restrict the plaintiff’s  
ability to obtain proper discovery on issues that are of a detailed and technical  
nature knowledge which Mr. Cameron is unlikely to have. Specifically, the plaintiff  
argues that a key issue in dispute in the action is the state of lot grading on  
September 29, 2018 (that being the deadline for the defendant to complete Servicing  
of the Property).  
[82] The plaintiff says the Master’s order is clearly wrong on the facts, given the  
documents clearly establish that Mr. Robbie was acting in a representative capacity  
and that the only reason he had anything to do with the project was that the  
defendant retained his employer to do so.  
[83] Finally, the plaintiff says that ordering that Mr. Cameron be examined is  
contrary to Rule 7-2(5) which gives the examining party the choice of representative,  
and that even if Mr. Robbie is not an appropriate witness, it should be up to the  
plaintiff to choose another representative of the defendant.  
The Defendant  
[84] The defendant says that the appeal must be determined on the “clearly  
wrong” standard. A correctness standard of review applies only to (a) questions of  
law, and (b) decisions that are vital to the final outcome of the case. The defendant  
says that neither arises here.  
[85] The defendant says that the Master made no legal errors in her identification  
of the appropriate test and properly applied the legal test to the facts before her. It  
says the Master properly noted that whether a party is an agent within the meaning  
of Rule 7-2(5) is a fact-specific exercise that must be determined from the entire  
context of the relationship and the tasks performed. Having reviewed all of the facts,  
 
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 25  
she correctly concluded on the evidence that Mr. Robbie acted in an independent  
capacity. The defendant says the Master correctly observed that acting  
independently is quite the opposite of acting as a representative, and that having  
carefully reviewed the pleadings, the matters alleged by the plaintiff were  
“inextricably intertwined” with Mr. Robbie’s opinion and advice provided to the City.  
[86] Finally, the defendant notes that it is open to the plaintiff to seek information  
from Mr. Robbie by written request pursuant to Supreme Court Civil Rule 7-5.  
Mr. Robbie  
[87] Mr. Robbie’s counsel generally adopted the arguments of the defendant. He  
emphasized the independent role played by a professional engineer in issuing  
certifications. He argued the fact that Mr. Robbie may well be an important witness  
does not mean that he can be examined for discovery. The test is whether or not he  
is an agent as that term has been interpreted for purposes of Rule 7-2(5)(c)(ii).  
Analysis  
[88] The purpose of an examination for discovery is to secure evidence that will  
support the examining party’s case or disprove the case of the party being  
examined, to understand the case to be met and discover the strengths and  
weaknesses of the other’s case, and to secure admissions which may dispense with  
more formal proof at the hearing: The Conduct of Civil Litigation in British Columbia,  
s. 18.1. Its essence is to provide the parties a means to uncover the truth so that the  
true facts may be presented at trial. In many cases, it narrows the divide between  
the parties as to what is actually in dispute and informs and encourages resolution  
through settlement.  
[89] The Supreme Court Civil Rules generally permit one examination for  
discovery of each named party (with limited exceptions). Where a corporation is a  
party to an action, the determination of the appropriate witness to be examined is  
governed by Rule 7-2(5).  
   
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 26  
[90] Rule 7-2(5) provides for the party being examined to nominate as its  
representative an individual who is knowledgeable concerning the matters in  
question in the action: Rule 7-2(5)(b). However, the examining party is not bound to  
examine that person, but may select as the person to be examined any other  
person, so long as that person “is or has been a director, officer, employee, agent or  
external auditor” of the party being examined: Rule 7-2(5)(c).  
[91] If the party to be examined objects to the person selected by the examining  
party, it can do so either:  
a) On the basis that the person does not fall within one of the roles listed in  
Rule 7-2(5)(c)(ii); or  
b) on the basis of the court’s discretion to override the examining party’s  
choice of witness, reflected in the words “unless the court otherwise  
orders” at the beginning of Rule 7-2(5).  
[92] The decision under appeal turned on the first of these matters. Having ruled  
that Mr. Robbie was not an “agent”, the Master concluded that she did not need to  
consider whether to exercise her discretion to order that he not be examined.  
[93] With respect to the second issue, I note that a party seeking to displace the  
examining party’s choice of witness based on this discretion must demonstrate that  
the choice of witness gives rise to overwhelming prejudice: XS West Construction  
Group v. Brovender, 2021 BCSC 917 at paras. 18-19. As noted in MacDonald v.  
Roth, 2000 BCSC 1670 at para. 26:  
[26]  
Our Court of Appeal has consistently recognized that the examining  
party has "the right at first instance to select the representative who is to be  
examined". In one decision adopted by our Court of Appeal, it was  
recognized that "serious injustice might be done if the right of examination for  
discovery was in any way to be regulated by the adverse party".  
[94] It is noteworthy that when a corporate party to be examined is nominating its  
representative, there is no restriction as to the role that individual played with respect  
to that corporate party. The only requirement is that the party be “knowledgeable”.  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 27  
However, when the examining party elects to examine an individual of its own  
choice, that individual must fall within the listed categories of director, officer,  
employee, agent or external auditor. This list of categories has the function of  
placing a limit on who may be chosen. However, as noted in Karl’s Sporthaus, the  
categories have been interpreted broadly rather than narrowly.  
[95] I turn then to the key questions on this appeal: whether the Master erred in  
law or was clearly wrong in deciding that Mr. Robbie was not an agent.  
[96] Justice Craig in Karl’s Sporthaus, in establishing the broad scope to be given  
to the word “agent” in Rule 7-2(5)(c)(ii), referenced the object of the Supreme Court  
Civil Rules, which now appears in Rule 1-3(1):  
The object of these Supreme Court Civil Rules is to secure the just, speedy  
and inexpensive determination of every proceeding on its merits.  
[97] Providing a broad definition of agency for purposes of this discovery rule  
eliminates the need for detailed consideration of the general law of agency in  
advance of discovery in order to determine whether an individual meets the test of  
agency. It eliminates the need to make a preliminary conclusion as to what may be a  
disputed issue at trial (i.e., whether or not the person is an agent), best determined  
after full discovery, and which may require consideration of viva voce evidence. In  
this way, the approach contributes to the just, speedy and inexpensive determination  
of proceedings.  
[98] There is another important feature of the broad approach that also contributes  
substantially to the just, speedy and inexpensive determination of an action “on its  
merits”. Ultimately, discovery plays a truth-finding role and the ability to examine a  
knowledgeable witness is key to uncovering the truth and thereby deciding a case  
on its merits. The broad approach taken in cases like Karl’s Sporthaus reflects the  
important role Rule 7-2(5)(c)(ii) plays in providing a reasonable limit on the range of  
individuals that may be selected by an examining party for discovery, while  
respecting the important truth-seeking function of an examination for discovery.  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 28  
[99] The existing test to determine whether a person is an agent for purposes of  
Rule 7-2(5)(c)(ii) requires consideration of whether the person does something for  
the party in a representative capacity. In my view, the Master in this case added to  
that test consideration of whether the person also has a shared identity and a  
commonality of interests.  
[100] To add such requirements is, in my view, contrary to the result in Appia, in  
which Justice R.R. Holmes concluded that the engineer in that case was an agent  
notwithstanding that the work performed by the engineer gave rise to mixed duties.  
At para. 13 of Appia, Justice Holmes refused to:  
[13]  
accept that [the engineer] could not be an agent for the plaintiff  
when part of his contractual duties under his designation as consultant in the  
remediation contract required that he be impartial between the plaintiff and  
the contractor when adjudicating certain differences between the parties that  
might arise.  
[101] An engineer subject to such mixed duties would have neither a commonality  
of interests or a shared identity.  
[102] In Bell v. Klein (No. 3) (1954), 12 W.W.R. (N.S.) 206, [1954] B.C.J. No. 21  
(S.C.), the court considered whether a partner of the accounting firm that was the  
auditor of the defendant company could be examined for discovery. The case in part  
turned on whether an auditor could be said to be an officer of the company. The  
Rules of Court at the time did not include “agent” among the list of available  
representatives. The subject matter of the action was allegations of fraud including  
charges of falsification of books of account and concealment of profits. Justice Clyne  
noted:  
[4]  
As one of the chief functions of auditors is to present to  
shareholders a true account of a company’s financial position I see no reason  
why auditors should not be examined on discovery in an action which rightly  
or wrongly challenges the good faith of directors in the management of  
company affairs …  
[103] An auditor, of course, owes duties both to the company (which retains it) and  
to its shareholders. The fact that an auditor, in reviewing a company’s financial  
records, owes dual duties was not seen by Clyne J. to be an obstacle to the auditor  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 29  
being examined for discovery on behalf of a company. Those dual duties would have  
related directly to the accuracy of the books of account and the extent of corporate  
profits the very matters at issue in the litigation.  
[104] It is noteworthy that Rule 7-2(5)(c)(ii) now specifically includes an auditor as a  
person who may be examined for discovery on behalf of a company. This is  
inconsistent with the notion that the existence of mixed duties would make a  
potential discovery witness inappropriate.  
[105] Engineers and architects play important roles in construction projects. They  
provide important services to the owner. They are often the primary contacts with  
municipal authorities having jurisdiction. They are often empowered to issue site  
instructions and design and contract clarifications. They are regularly required to  
affix their seal to drawings and other construction documents, with respect to which  
they are bound to professional duties to the self-governing professional bodies to  
which they belong. They are often given the power to adjudicate differences  
between the parties to construction contracts, which requires them to act in an  
impartial manner. They are on some projects called upon to act as certified  
professionals, undertaking duties in the course of both their design and site review  
services to the authority having jurisdiction. Even if not acting as a certified  
professional, an engineer or architect may well be required to certify various matters  
to any one or more of the contractors, subcontractors and authorities having  
jurisdiction with respect to a construction project. In undertaking these duties, the  
architect or engineer is required to keep in mind the various duties owed to all those  
relying on their professional judgment and decision-making.  
[106] The decision in Appia recognizes the special role that architects and  
engineers play in construction projects, while also recognizing that an architect or  
engineer may well be an important source of information for the parties especially  
where important matters in issue are technical in nature.  
[107] Nor is the sort of work that an engineer does easily attributable to one  
particular aspect of an engineer’s role. An inspection of any aspect of a project may  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 30  
well lead to a report to the owner, an instruction to a contractor, a certification to the  
municipal authority having jurisdiction, and eventually a decision in respect of a  
dispute between contractors or between the owner and contractors.  
[108] Both paras. 42 and 47 of the judgment under appeal (cited above) focus on a  
conclusion that the engineer, in providing a certification, is acting independently and  
thus cannot be a developer’s representative. These paragraphs reflect the  
application of an extended definition of agent – one requiring a “commonality of  
interest” and excluding any consideration that (as in Appia) that professional may  
owe multiple duties.  
[109] I conclude the Master in effect extended the requirements for a potential  
witness to be an “agent” for purposes of Rule 7-2(5)(c)(ii) in a matter that is  
inconsistent with the underlying rationale of the rule and the broad approach taken in  
the existing authorities. This was an error of law, and her decision should be set  
aside on that basis.  
[110] I am also of the view that the judgment was clearly wrong.  
[111] In this case, as with Mr. Kyle in the Appia case, Mr. Robbie did a wide variety  
of things for the defendant encompassing many matters germane to the key issue in  
this case being the state of lot grading on the lots that were to be sold to the  
plaintiff. He was, to use the language in Appia, acting as the defendant’s agent to  
undertake and deal with matters that technically and administratively the defendant  
could not perform itself. He was there as a consultant retained by the defendant. His  
role encompassed the design and preparation of works not only on the lots to be  
sold to the plaintiff but also on and under the adjacent streets and sidewalks, which  
were to be transferred to the City. He inspected the work performed by B&B and  
gave instruction to B&B in respect of the work that he inspected. He drew  
conclusions with respect to his inspections, which were communicated to the  
defendant, B&B and the City. He communicated those conclusions to the City by  
way of the letters that he prepared and sealed. In respect of the sealed letters, he  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 31  
would have owed duties of competence and professionalism both to the City and to  
the defendant as owner and the party by which he was retained.  
[112] The documents set out above clearly identify Aplin & Martin as the  
defendant’s agent. The 2016 authorization letter provided that Aplin & Martin was to  
act as an authorized agent on the owner’s behalf on all matters pertaining to the  
application for the above-noted property/properties. Paragraphs 1 and 3 of the  
standard form letter of responsibility, quoted above, would have the engineer state to  
the City that:  
1. I have been retained by the Developer to prepare and certify designs  
including as-constructed drawings and documents; to carry out construction  
survey, construction field reviews and field coordination; to perform as the  
Contract Administrator as defined in the Master Municipal Construction  
Documents for the Project; and will make complete submissions in  
accordance with the current process outlined in the City of Surrey  
Engineering Land Development Customer Manual.  
3. I am responsible for representing the Developer with respect to all  
technical aspects of the Project to the City of Surrey. I shall obtain all  
necessary information to fulfill my responsibilities to the City of Surrey for the  
Project.  
[Emphasis added.]  
[113] These documents are prima facie evidence that the engineer is appointed to  
act as agent with respect to a broad range of technical matters. The Master found  
that Mr. Robbie was not an agent notwithstanding these. In my view, there are three  
key aspects of the Master’s analysis in which she erred.  
[114] The first was the Master’s conclusion that “the certifications are at the heart of  
the litigation” (para. 40). The pleadings are clear that a major issue on which the  
case will turn is whether the required Site Services for the Building Lots had been  
completed by the contractual deadline. The certifications are important evidence  
going to that issue. It is clear that in the weeks following the certifications, there were  
ongoing email communications amongst Aplin & Martin, B&B and the defendant as  
to the state of grading on Lots 14-21. Those ongoing discussions may well reflect  
back on the accuracy of the certifications that were provided in August 2018, and the  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 32  
completeness of the underlying inspections, but they also reflect the ongoing role of  
Mr. Robbie and Aplin & Martin with respect to oversight of the Site Services work  
and, specifically, the state of lot grading leading up to the contractual deadline. I am  
of the view that the Master was clearly wrong to limit her focus to the certifications  
given what is pleaded.  
[115] More generally, it is my view that it was wrong for the Master to limit her focus  
to just one aspect of Mr. Robbie’s work in connection with reviewing the state of lot  
grading. Her reasons for judgment reflect a fine parsing of the work of Mr. Robbie,  
and appear to reflect an assumption that only one party can be owed duties for each  
aspect of the work. At para. 55, she comments that anything communicated with the  
City with respect to the state of lot grading is “inextricably intertwined with the  
development of Mr. Robbie’s opinions and advice contained in his inspection  
reports”. I am of the view that the Master was clearly wrong to proceed on this basis  
given the nature and multiple purposes of the work for which Aplin & Martin was  
retained.  
[116] Rather, it is my view that in performing his inspections and preparing his  
certifications, Mr. Robbie owed duties of competence and professionalism not only  
to the City, but also to the defendant who had retained him to act in a professional  
capacity to advance the project. It is true, given Mr. Robbie’s obligations as a  
professional engineer, that the defendant was not entitled to simply instruct him what  
to say in documents to which he was attaching his engineer’s seal. In my view,  
Appia establishes that does not prevent an engineer from falling within the scope of  
the word “agent” for purposes of Rule 7-2(5)(c)(ii). I am of the view that the Master  
was clearly wrong to conclude that in inspecting and certifying the state of lot  
grading, Mr. Robbie was doing something only for the City.  
[117] At para. 41 of her reasons, the Master relies on wording of the standard form  
Letter of Responsibility with respect to the City’s reliance on the engineer’s expertise  
with respect to the “Work and Services”. As noted above, Works and Services is a  
defined term, and it relates to the services that are to be turned over to the City at  
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 33  
the conclusion of the project. To the extent the Master relied on this language to  
determine the nature of the engineer’s work with respect to grading of the Building  
Lots, this was also clearly wrong.  
[118] I will deal briefly with the other ground of appeal advanced by the plaintiff: that  
the Master’s judgment impacts in a final way on a matter at issue in the litigation. I  
accept there may well be an issue at trial as to whether Mr. Robbie was an agent of  
the defendant. That will presumably be determined on the general law of agency and  
a full evidentiary record. Given that the cases clearly establish that the test to be  
applied for determining whether a person is an agent under Rule 7-2(5)(c)(ii) differs  
from that applied in the general law of agency, I do not think that anything said in the  
Master’s judgment would impact that determination. As a result, I do not see the  
judgment as determining in a final way a matter at issue in the litigation.  
Conclusion  
[119] For the reasons set out above, the appeal must be allowed. The order of the  
Master is set aside.  
[120] I conclude that Mr. Robbie falls within the scope of the word “agent” for  
purposes of Rule 7-2(5)(c)(ii).  
[121] As noted above, the court retains a discretion to order that a person who falls  
within the language of Rule 7-2(5)(c)(ii) not be examined. The Master did not rule on  
whether the court should exercise that discretion in this case, and the parties did not  
address the issue before me. Should the defendant wish to pursue that matter, it  
should renew its application to that effect in regular chambers.  
[122] Given the result, I do not need to deal with the plaintiff’s submission that the  
Master should not simply have ordered that Mr. Cameron be examined, which the  
plaintiff says deprived it of the ability to choose an appropriate witness who does fall  
within Rule 7-2(5)(c)(ii). I note that the order of Justice McEwan in Rossco was  
structured to allow some scope for the examining party to select an alternative  
witness. In light of the importance attached in cases like Macdonald v. Roth to the  
 
R.A.B. Properties Ltd. v. Canadian Horizons (182A) Development Corp. Page 34  
examining party having its choice of witness, that would appear to be the preferable  
procedure.  
Veenstra J.”  
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