Whether plaintiff may have a cause of action against potential parties
Quick Take
1An applicant for pre-action discovery under RSC O 26A r 4 must demonstrate more than mere assertion, conjecture or suspicion that a cause of action may exist; there must be evidence demonstrating on an objective basis that all facts necessary to give rise to a right to sue may be able to be established.
2The requirement that an applicant 'wants to commence proceedings' is not satisfied where the pre-action discovery is sought to ascertain whether a cause of action exists at all, rather than to obtain information needed to decide whether to pursue a cause of action the applicant has already identified on an objective evidentiary basis.
3Pre-action discovery cannot be used to fish for the existence of a contract or cause of action; the purpose of the procedure is to enable a decision whether to commence proceedings where a potential cause of action has been identified with some tangible objective foundation.
