Litigants Prohibited From Self-Recording Examinations For Discovery
Adding to this site’s archived posts relating to examinations for discovery under the BC Supreme Court Rules, reasons for judgement were released this week addressing whether a party may self-record an¬†examination¬†for discovery. ¬†In short the¬†answer¬†is no.
In this week’s case (Rassaf v. SNC-Lavalin Engineers and Constructors Inc.) the Plaintiff indicated he wished to record his own discovery. ¬†The Defendant brought an¬†application¬†prohibiting him from doing so. ¬†In granting the application Mr. Justice Goepel provided the following reasons:
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†A somewhat similar situation arose concerning the power of parties to videotape examinations for discovery. In¬†Ramos v. Stace-Smith¬†(2004), 24 B.C.L.R. (4th) 333, Mr.¬†Justice Fraser allowed an examination to be videotaped.
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†That decision was subsequently followed in¬†Ribeiro v. Vancouver (City),¬†2004 BCSC 105. The¬†Ribeiro¬†case was appealed. The appeal judgment is found at 2004 BCCA 482. On appeal, Madam Justice Southin held that the decision in¬†Stace-Smith¬†was wrongly decided and similarly the chambers judgment in¬†Ribeiro, which had followed¬†Stace-Smith, was similarly wrongly decided. In reaching her decision, she noted that there was no provision in the¬†Rules¬†for an order for videotaping. She said at para.¬†3:
There is no provision in the¬†Rules of the Supreme Court of British Columbia¬†for the order which was pronounced in this case. Since time immemorial, that is to say since examinations for discovery were first permitted in this province which I think now is about 80 or 90 years ago, they have never been filmed by any method at all. If they are to be, there must be a change in the¬†Rules of the Court¬†to permit or authorize such a practice, or, in my view, there must be at least a practice direction emanating from the whole of the Supreme Court of British Columbia on the point. In making the latter remark, I am not saying that a practice direction would necessarily be valid in such circumstances. Matters of practice and procedure in the court below must be governed by its¬†Rules, and those¬†Rules¬†must be duly enacted under theCourt Rules of Practice Act. It is certainly open to the Lieutenant Governor in Council to permit what Mr.¬†Potts says is a very good idea but she has not done so. It is not appropriate for a single judge of the court below to engage in matters of practice and procedure in what I call judicial individualism. The course of the court below is the law of the court and the course has never been to engage in such a practice.
Those words apply in these circumstances.
¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†It has not been the practice that individual parties are allowed to record examinations for discovery. There is no provision for same in the¬†Rules. In these circumstances it would not be appropriate for me to allow such to occur. Accordingly, I am granting the defendant‚Äôs order, and the plaintiff will be prohibited from recording by any means his examination for discovery.