In one of the more in-depth judicial discussions of examinations for discovery in the context of a personal injury claims, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of proper objections at a Plaintiff’s examination.

In today’s case (Nwachukwu v. Ferreira) the Plaintiff was injured in a 2006 collision.  In the course of the lawsuit the Plaintiff attended three examinations for discovery.  The Plaintiff’s lawyer raised numerous objections during these and the discoveries were ultimately cut short.  The Defendant brought an application directing the Plaintiff to answer the questions which were objected to and further for permission to conduct a lengthier examination for discovery pursuant to Rule 7-2(2).

Mr. Justice Willcock granted the application finding there was “significant obstruction” at the previous discoveries.  In doing so the Court provided the following helpful comments about the scope of discovery and of common objections:

[32] The scope of examination for discovery has recently been canvassed by this court in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556; More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166; and Day v. Hume, 2009 BCSC 587.  In those cases, the court reiterated the following principles:  the language of Rule 7-2(18) is identical to the former Rule 27(22) and the scope of examination for discovery has remained unchanged and is very broad.  Rigid limitations rigidly applied can destroy the right to a proper examination for discovery.  Useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose.  An examination for discovery is in the nature of cross-examination.  Counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[33] The time limit established by Rule 7-2(2) creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available.  A largely hands-off approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality.  Allowing wide-ranging cross-examination on examination for discovery is far more cost effective than a practice that encourages objections which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial rather than on examination for discovery.  Where intervention is appropriate, the proper conduct of counsel is to state the objection to the form of a question and the reasons for the objection, but it is not appropriate to make comments, suggestions or criticism.

Applicable Law

[34] Many of the specific objections in issue are addressed in an article by John Shields and Howard Shapray published in The Advocate, Vol. 68, pt. 5 (September 2010) at page 671, referred to by Mr. Markham-Zantvoort in argument.

(a) Relevance

[35] Counsel objects to many questions on the grounds that they are not relevant.  In addressing these objections, I proceed from the proposition that counsel should have broad discretion to frame appropriate questions for the examination of the plaintiff, respecting the principles described in the cases to which I have referred.

(b) Confusion

[36] Counsel objects to many questions on the grounds that he finds them confusing.  In Cominco Ltd. v. Westinghouse Canada Limited (1979), 11 B.C.L.R. 142 (C.A.), the Court of Appeal at para. 19 held:

If a question is difficult to answer, the witness can say so and can be cross-examined about the difficulty. It is for the witness, not counsel, to deal with that.  Difficulty in answering does not exclude a whole area. It excludes specific questions.  No area of fact is closed on the ground that to enter it would “open the floodgates”.

(c) Repetition

[37] Counsel objects to questions he considers repetitive.  As Shields and Shapray note, “asked and answered” is not an appropriate objection in Canada.  Madam Justice Boyd in Rec Holdings Co. v. Peat Marwick Thorne Holdings, [1995] B.C.J. No. 1964 (S.C.), held at para. 9:

It is trite law that an examination for discovery is in the nature of a cross-examination.  While there will be situations in which repeating the same allowable question over and over on cross-examination may amount to intimidation, the Court must be slow to interfere where that tactic is used relatively sparingly and particularly in circumstances in which there are good grounds for the cross-examiner’s belief the witness may be falsifying his evidence.

(d) Inadequate Foundation

[38] Shields and Shapray say there is no requirement that a foundation be laid for a question.  In Cominco, the court noted at para. 632:

The objection is that no foundation was laid for the questions.  That suggestion does not appear to have been made at the time and I think that, if one objects, one should say why.  Presuming that this objection can now be made, I merely say that I know of no requirement that a foundation be laid.  None was cited to us.  Those questions should have been answered by the witness without interruption by counsel.

(e) Compound Questions

[39] Counsel routinely objected to questions that he considered to be compounded questions.  Shields and Shapray say, properly in my view, that objection to the form of question should be used sparingly.

(f) Privelege

[40] Counsel objected, at the most recent examination, when the plaintiff was asked what he alleges or says in relation to the claim.  The plaintiff cannot be asked what counsel told him about his claim or how the case will be framed at trial.  He may not be asked how much he will say he has lost, if the answer requires disclosure of an opinion obtained by the solicitor.  Question 1152 on the examination for discovery seems to seek such information.

[41] The witness cannot be asked to disclose how the facts having assembled, weighed or analysed by counsel.  That is what was offensive in the general requests considered by the court inTriathlon Ltd. v. Kirkpatrick, 2006 BCSC 890.  The questions asked in that case were held to offend the description of the privilege afforded to the solicitor’s brief in Hodgkinson v. Simms(1988), 33 B.C.L.R. (2d) 129 (C.A.).  It was the manner of getting at the work product by asking what facts had been assembled by counsel or what facts would be relied upon, rather than by asking about specific facts, that was objectionable.  The manner in which facts have been marshalled is a question going to trial strategy.  It is for that reason that I expect that counsel have included in the book of authorities Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143, although no express reference was made to it in oral submissions.  In that case, questions were held to be objectionable because of what was being sought: conclusions reached by counsel, rather than the evidence of the witness.

[42] Questions that intrude upon privilege are generally objectionable.  That is expressly reflected in Rule 7-2(18).  Care should be taken to protect the solicitor/client relationship.

Although examination for discovery transcripts can be read into evidence at trial, the Rules of Court limit the evidence to being used against “the adverse party who was examined“.  In other words, a litigant can’t use their own transcript to bolster their own case.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this limitation.

In last week’s case (Haughian v. Jiwa) the Plaintiff was involved in a motor vehicle collision.  The Defendant brought a summary trial application seeking to dismiss the claim.  The Plaintiff produced an affidavit which stated that “in my examination for discovery I described precisely how the accident occurred”  and went on to attach “as an exhibit 29 pages for her examination for discovery conducted by counsel for the defendants“.

The Defendant objected to this evidence arguing it was inadmissible.  Mr. Justice Punnett agreed and provided the following reasons explaining the limitation of discovery evidence at trial:

[8] The plaintiff’s affidavit appends portions of her examination for discovery by counsel for the defendants.  The defendants object to the tendering of discovery evidence in this way.

[9] Summary applications are based on affidavit evidence.  However, they are still trials and as such are governed by the rules and evidentiary requirements of a regular trial.  The followingSupreme Court Civil Rules (the “Rules”) are relevant:

9-7(5)  Unless the court otherwise orders, on a summary trial application, the applicant and each other party of record may tender evidence by any or all of the following:

(a)        an affidavit;

…

(c)        any part of the evidence taken on an examination for discovery;

…

[10] However, the breadth of the statement in part (c) above is restricted by Rule 12-5(46) which provides:

(46)      If otherwise admissible, the evidence given on an examination for discovery by a party … may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:

(a)        the adverse party who was examined;

…

[12] The defendants’ objection is that only the defendants can tender the plaintiff’s examination for discovery evidence.  They rely on the rules cited above as well as Tesscourt Capital Ltd. v. FG Nutraceutical Inc., 2011 BCSC 814; Mikhail v. Northern Health Authority (Prince George Regional Hospital), 2010 BCSC 1817; Schwartz v. Selkirk Financial, 2004 BCSC 313; Pete v. Terrace Regional Health Care Society, 2003 BCCA 226; Great Canadian Oil Change v. Dynamic Ventures et al, 2002 BCSC 1295, and Shiels v. Shiels (1997), 29 B.C.L.R. (3d) 193 (S.C.).

[13] I am satisfied that the discovery evidence sought to be introduced by the plaintiff cannot be relied upon by the plaintiff for the truth of its contents.

Although not a BC case, interesting reasons for judgement were recently brought to my attention from the Suprerior Court of Jutice, Ontario, judicially criticizing an overly “protective approach” to the defence of a medical-malpractice lawsuit.

In the recent case (Ornstein v. Stein) the defendant surgeon “mistakenly operated on the plaintiff’s thumb instead of her right fifth finger“.  He was sued for damages.  At his examination for discovery only the following seven words were extracted from him before his counsel objected to all subsequent questions:

.         Q.        Please state your full name for the record

A.        Joseph Auby Starr.

.         Q.        And you are a doctor

A.       I am.

.         Q.        And do you have a specialty?

A.       Plastic surgery.

Much of the subsequent transcript is reproduced in the reasons for judgement.  Liability was initially denied but the defendant admitted to “breaching the standard of care” shortly before his examination.  Given this admission the Defendant’s lawyer objected to all questions that followed.  Some of the objected questions included

“And how long have you been carrying on as a plastic surgeon“

“When did you first meet the Plaintiff“

“Did you examine her hands at the time when you first met her?“

“Did you made any observations of the condition of her fingers when you first examined her?“

Master Short noted that these questions were fair game and ordered the Doctor to answer them.   In addition the Plaintiff was awarded costs of $9,000.   In doing so the Court highlighted and provided comments about the protective approach the Canadian Medical Protection Association engages in when facing medical malpractice lawsuits.  Master Short provided the following comments:

[] The Strategic Plan notes that the CMPA “is owned and governed by physicians in the collective interests of the profession.” The Association’s core values guide its actions and fall within three broad commitments. In addition to a “Commitment To Responsible Governance And Management”, the other two identified commitments are relevant, in my view, to the correct approach to the resolution of this motion. In part the “Commitments” read:

“COMMITMENT TO MEMBERS…

• An ethical defence. The integrity and professional reputation of physician members are two of their most valued assets. The CMPA provides members with an ethical defence and, in keeping with its approach of “defending the defensible,” does not settle unsubstantiated claims for expediency or economic reasons.

COMMITMENT TO PATIENTS…

• Financial compensation. If patients are proven to have been harmed as a result of negligent medical care provided by a CMPA member, assistance will be available to compensate those patients in an appropriate and timely manner. [my italics and underlining throughout]

[] The CMPA’s Strategic Plan identifies 5 desired strategic outcomes. The first of these is entitled “Strategic outcome #1 — Protecting members’ integrity”. One of the five identified Objectives in this regard reads:

“1.2 To promote appropriate measures that encourage the timely resolution of medico-legal matters. Regardless of the circumstances, medico-legal matters are stressful for all involved: physicians, other health care providers, patients and their families. The CMPA will actively promote measures that respect the right to procedural fairness and encourage the timely resolution of such matters. This will reduce system costs, improve accessibility to justice and reduce the stress experienced by physicians and their patients.” [my emphasis]

[] I am troubled that the approach taken in this case does not strike me as being in accord with the objectives described above. I would hope those responsible for the approach in this case would re-evaluate whether the strategy used in this case to date, accords with the requirements of procedural fairness in the administration of justice in present day Ontario.

The law in BC generally permits only parties and their lawyers to attend examinations for discovery.  In limited circumstances, however, the Court can permit others to attend a discovery relying on the BC Supreme Court’s ‘inherent jurisdiction‘.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In this week’s case (Burgess v. Buell Distribution Corporation) the Plaintiff suffered “very serious personal injury” in a motorcycle accident.  He sued the manufacturer and scheduled an examination for discovery of an engineer employed with the Defendant.  The Plaintiff argued that his expert should be allowed to attend as the claim includes “matters requiring an understanding of technical concepts relating to the design, manufacture, and testing of motorcycles and sidecars“.

The Defendant opposed arguing this would add unnecessary time and expense to the Court Proceedings.  Mr. Justice Grauer disagreed with the Defendant and allowed the expert to attend.  In doing so the Court provided the following reasons:

[6] The Rules do not specifically address this issue, but it has certainly been the practice in this province that only the parties and their legal representatives may attend examinations for discovery in the absence of consent or an order of the court.

[7] In Ian Macdonald Library Services Ltd. v. P.Z. Resort Systems Inc. (1985), 67 B.C.L.R. 269, Madam Justice Southin, then of this Court, considered a similar application and said this:

[6]        I think the simple and sensible answer to this question is that counsel should be able to do so whenever the nature of the case is such that counsel cannot reasonably be expected to conduct a full and proper cross-examination of the witness being discovered without expert assistance.

[7]        Whether in any given case such expert assistance is necessary will depend, among other things, on:

1.         The issues in the action;

2.         The level of technical and scientific knowledge which can reasonably be expected of counsel generally at any given time;

3.         The extent of inconvenience to which the parties may be put if counsel must conduct part of an examination then adjourn it, consult with an expert and conduct the rest of it perhaps on some other occasion.

…

[9] I find that the issues in this case raise a level of technical and scientific knowledge beyond what can reasonably be expected of counsel generally.  While counsel normally are very adept at quickly, if temporarily, acquiring specialized knowledge relevant to their cases, it would be unwise I think for the court to second-guess the judgment of counsel as to what is required for the full and fair examination of an opposite party who possesses specialized expertise in this type of case.  Given the nature of the issues, I see nothing that strikes me as unreasonable about the request.

[10] What must be considered however is whether accommodating the request of examining counsel would result in prejudice to the party being examined.  If so, then the court must attempt to weigh that prejudice against the prejudice to the examining party of being deprived of expert assistance.

[11] In this case, no prejudice has been put forward by Harley-Davidson other than the concerns of disruption, increased expense, and extended time.  As to disruption, both counsel are experienced and I see no reason to suppose that this concern is likely to materialize in any meaningful way.  As to increased expense, the evidence does not satisfy me that such a result is likely.  Similarly, the time is at least as likely to be shortened as it is to be extended.

[12] Counsel for the defendant suggests that this will lead us down a slippery slope to a result where counsel will always request expert assistance at examinations for discovery in technical cases.  I very much doubt that that will follow, but in any event each case will be dealt with on its individual circumstances.  Where the examining party can establish the need, and the party being examined cannot establish prejudice, there is no reason to worry.  It did not worry Madam Justice Southin.

[13] As to the concept of proportionality, it seems to me that granting the relief requested is more likely to promote than inhibit the just, speedy, and inexpensive determination of this proceeding on its merits taking into account the amount involved, the complexity of the issues and the importance of conducting a full, fair and informed examination for discovery.  Accordingly, leave is granted as requested.

Important reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, further clarifying the examination for discovery limit in the new Rules of Court.  In short the Court held that notwithstanding the time limit, generally only one examination for discovery is permitted.

In today’s case (Humphrey v. McDonald) the Plaintiff alleged injury following a collision.  In the course of the lawsuit the Plaintiff attended an examination for discovery.  It did not exceed the 7 hour cap set out in Rule 7-2(2).  Defence counsel brought an application seeking further discovery.  The Plaintiff opposed.  Madam Justice Gray dismissed the application finding that generally only one discovery is permitted.  The Court provided the following useful reasons:

[8] Defence counsel responds that it is implied that examinations should not be scheduled if it was abusive, but apart from that, a party can schedule multiple examinations for up to seven hours in total.

[9] In my view, the use of the plural “examinations for discovery” has to be read in the context of the entire sub-rule. It makes reference to examinations under other sub-rules, which relate to re-examination in subsection (17), in subsection (22) to informing himself or herself and it being adjourned for that purpose, and subsection (24) continuing an examination for discovery following receiving a letter.

[10] In my view, the sub-rule does not suggest that there should be more than one examination for discovery of a party. A party should be able to know whether they are finished with examinations for discovery or whether more are pending.

[11] I do not accept the interpretation of the sub-rule advanced by defence counsel. Since defence counsel has effectively conceded that it has had one examination for discovery of the plaintiff, the defence application to have a further examination for discovery of the plaintiff is dismissed.

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing the time limit for examinations for discovery when two actions are set for trial at the same time.  In short the Court held that the Rules permit up to 14 hours of Plaintiff examination in these circumstances without the need for a Court Order.

In last week’s case (Campbell v. McDougall) the Plaintiff was involved in two separate motor vehicle collisions.  She sued for damages in both actions.  In the course of the lawsuit the Plaintiff was examined for discovery which was discontinued after 3.5 hours due to the Plaintiff’s fatigue.  The discovery was reset and continued for a full day for a total of 10.5 hours of examination.

The Defendant wished to have 2.5 further hours of examination.    The Plaintiff opposed and a Court application was brought.  It appears the the parties worked out many of their differences prior to the hearing of the application but ultimately the Court ordered that the Plaintiff attend a further 2.5 hours.

In doing so Master Bouck provided the following comments with respect to the discovery ‘cap’ of 7 hours set out in Rule 7-2(2):

[32] In the end, the plaintiff could be required to undergo up to 14 hours of an examination under Rule 7-2 without the defence having to obtain leave of the court.

[33] In this case, the defence has chosen to have one counsel conduct an examination, but effectively with respect to both actions.

[34] There is a sound basis for requesting the “additional” examination time, particularly with respect to the plaintiff’s new employment status. While it seems unlikely that the court would grant leave to exceed the specified hour allotment simply when some new information comes to light, the plaintiff’s earning abilities and capacity forms a significant part of the overall claim. A very large monetary amount for that loss will probably be advanced. An additional 2½ hours (and still less than the allowable 14 hours) examination time is not out of proportion to the amount involved in this proceeding.

Last year I uploaded this video providing a basic overview of some key information for Plaintiff’s attending an examination for discovery in an ICBC Claim.  If I could add one more tip to the issues discussed it would be this: Google yourself before attending.  It’s a safe bet that ICBC already has.

One of the most basic tasks any lawyer can undertake in preparing for discovery is to Google their subject.  Who knows what will come up.  Maybe some embarrassing photos on Facebook, maybe a boastful biography on a dating site, perhaps even some unwitting self-surveillance on YouTube.  Whatever comes up, if it can harm your interests, it likely will be brought out at discovery.

10 minutes of your time can help you and your lawyer greatly in preparing for discovery.  If there is something that needs to be explained its better that this gets discussed for the first time in the privacy of your lawyer’s office as opposed to under oath before a Court Reporter.  A bit of time reviewing potentially harmful (or embarrassing) information can go a long way in taking the bite out of an examination for discovery.

For more on examinations for discovery in ICBC Claims you can click here to access my archived posts on the topic.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that personal injury plaintiffs need to list and produce examination for discovery transcripts from previous claims dealing with similar injuries under Rule 7-1(1) of the Rules of Court.  This decision appears to me to be at odds with previous cases addressing this issue (you can click here to access my archived posts on this topic).  This issue may need to be dealt with by the Court of Appeal in order to have some certainty in this area of law.

In today’s case (Cochrane v. Heir) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  ICBC appointed the same lawyer to defend the claim that defended a previous lawsuit of the Plaintiffs.  In the previous lawsuit ICBC’s lawyer conducted an examination for discovery of the Plaintiff.  He applied for an order to set aside the ‘implied undertaking of confidentiality’ that applied to the former transcript.

Mr. Justice Harris granted the application but went further and ordered that Plaintiffs are obligated to list and produce previous discovery transcripts.  Mr. Justice Harris provided the following reasons:

[5] In my view, there should be no need to relieve counsel for the defendants of his obligation under the implied undertaking. The documents are either in the possession of the plaintiff or they were in her control or possession. The plaintiff has an independent obligation to list and produce them further to her obligations under Rule 7-1(1)(a)(i) of the Civil Rules. The plaintiff cannot shield herself from her obligation to list and produce relevant documents by invoking the implied undertaking against opposing counsel who came into possession of those documents in the previous litigation: see Wilson v. McCoy, 2006 BCSC 1011.

[6] Given that the documents in issue have not yet been listed and produced by the plaintiff, I am prepared to relieve counsel for the defendants of the implied undertaking in respect of the transcripts of the examinations for discovery conducted in the previous action and the documents in issue. The implied undertaking exists to protect privacy rights and to facilitate the free flow of information in litigation by providing an assurance that information compelled to be provided in discovery is not used for collateral purposes.

[7] In Juman v. Doucette, [2008] 1 S.C.R. 1011, the following is said that governs the exercise of my discretion to relieve a party or counsel of the obligations imposed by the implied undertaking:

[35]      The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted. See Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R. (2d) 260 (H.C.J.), at pp. 265-66; Crest Homes, at p. 1083; Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323 (C.A.); Harris v. Sweet, [2005] B.C.J. No. 1520 (QL), 2005 BCSC 998; Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 27 C.P.C. (4th) 252 (B.C.S.C.).

[8] The application of counsel for the defendants is granted.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of both discovery of documents and examinations for discovery under the new Rules of Court.

In today’s case (More Marine Ltd. v. Shearwater Marine Ltd) the Plaintiff companies sued the Defendant alleging the breach of marine insurance policies.  The Plaintiff was self represented.  He examined an insurance adjuster that worked for the Defendant.  At discovery the Defendant raised numerous objections including an objection to questions addressing “general practices in the insurance industry“.  A motion was brought seeking guidance addressing whether these questions were permissible.

Mr. Justice Smith held that this line of questioning was appropriate and ordered that a further discovery take place.  In doing so the Court provided perhaps the most extensive judicial feedback to date about the changes with respect to discovery obligations under the New Rules of Court.  Mr. Justice Smith gave the following useful reasons:

[3]             The scope of proper questioning on an examination for discovery is set out in Rule 7-2 (18) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]:

Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and

(b)        is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

[4]             The new Rules came into effect on July 1, 2010, but the language in rule 7-2 (18) is identical to the former rule 27 (22).  As Griffin J. said in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556 [Kendall] at para. 7 “the scope of examination for discovery has remained unchanged and is very broad.”  In Cominco Ltd. v. Westinghouse Can Ltd. (1979), 11 B.C.L.R. 142 (C.A.) [Cominco], an early and leading case under the former rule, the Court of Appeal said at 151 that “rigid limitations rigidly applied can destroy the right to a proper examination for discovery.”  The court in Cominco also adopted the following statement from Hopper v. Dunsmuir No. 2 (1903), 10 B.C.R. 23 (C.A.) at 29:

It is also obvious that useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose, and it is needless to labour the proposition that in many cases much preliminary skirmishing is necessary to make possible a successful assault upon the citadel, especially where the adversary is the chief repository of the information required.

[5]             In Day v. Hume, 2009 BCSC 587 this court said at para. 20:

The principles emerging from the authorities are clear. An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[6]               While Rule 7-2 (18) is the same as its predecessor, the new Rules create a distinction that did not previously exist between oral examination for discovery and discovery of documents.  The former rule 26 (1) required a party to list all documents “relating to every matter in question in the action.”  Although disclosure in those terms may still be ordered by the court under Rule 7-1 (14), the initial disclosure obligation is set out more narrowly in Rule 7-1(1):

(1)        Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,

(a)        prepare a list of documents in Form 22 that lists

(i)         all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii)        all other documents to which the party intends to refer at trial, and

(b)        serve the list on all parties of record.

[7]             Under the former rules, the duty to disclose documents and the duty to answer questions on oral examination were therefore controlled by the same test for relevance.  Under the newRules, different tests apply, with the duty to answer questions on discovery being apparently broader than the duty to disclose documents.

[8]             Although that may appear to be an anomaly, there are at least two good reasons for the difference.  One reason is that if the court is to be persuaded that the broader document discovery made possible by rule 7-1(14) is appropriate in a particular case, some evidence of the existence and potential relevance of those additional documents will be required.  The examination for discovery is the most likely source of such evidence.

[9]             The second reason relates to the introduction of proportionality as a governing concept in the new Rules.  Rule 1-3 (2) states:

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[10]         The  former rule governing discovery of documents was interpreted according to the long-established test in Compagnie Financière du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63 (C.A.):

It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party … either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party … either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences…

[11]         The new Rules recognize that application of a 19^th century test to the vast quantity of paper and electronic documents produced and stored by 21^st century technology had made document discovery an unduly onerous and costly task in many cases.  Some reasonable limitations had become necessary and Rule 7-1 (1) is intended to provide them.

[12]         The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.

[13]          As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. This interplay was described in Kendall at para. 18:

A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery.

One of the welcome developments in the New BC Supreme Court Rules is a cap on the length of examinations for discovery.   Examinations in conventional lawsuits are capped at 7 hours under Rule 7-2(a) and limited to 2 hours in Fast Track trials.  The Court has a general power to permit lengthier examinations in appropriate circumstances.

When parties conclude an examination for discovery there are typically requests for further information and parties usually agree to a follow up discovery to address matters arising from the further disclosure.  When a party wishes to further explore a topic already covered, however, they are usually not permitted to have a continuation of the discovery.  Reasons for judgement were released today addressing this area of law.

In today’s case (Lewis v Lewis) the Plaintiff was involved in a 2005 motor vehicle collision.  The Plaintiff alleged injury.  The Defendant denied that she was injured and alleged that her injuries were pre-existing.  In the course of the lawsuit the Plaintiff provided various medical records including pre-accident records.

The Plaintiff attended a discovery and was examined with respect to her injury claim.   After concluding the discovery the Defendants requested a continuation to further explore the issue of the Plaintiff’s pre-accident health.  The Plaintiff opposed arguing that she had already been examined with respect to this topic.  Mr. Justice Harvey agreed with the Plaintiff and dismissed the application for a further discovery.  In doing so the Court provided the following useful reasons:

[8]             The case law stands for the proposition that where a further examination for discovery is sought, there is a heavy onus on the applicant to justify that further examination, and that to justify same they must demonstrate that the complexion of the case has materially changed as a result of the passage of time, new heads of damage are being advanced, or intervening events having occurred since the last discovery, which would materially alter the prosecution of the case and the defence of it.

[9]             Alternatively, a party could produce evidence to show that full and frank disclosure was not made at the first discovery.

[10]         Here that is not the case. Here the defendant, together with its medical advisor, failed to see what was there to be seen. Specifically, each failed to note and act upon the references to previous shoulder complaints in clinical records that were in the hands of both the medical practitioner and the solicitor conducting the discovery.  I am not satisfied that the heavy onus that is set forth in the decisions I have been referred to, one of which was Sutherland (Public Trustee of) v. Lucas, has been met.

[11]         Accordingly the application for a further discovery by the defendant is dismissed.