More on the Broad Scope of Examination for Discovery

As previously discussed, BC Courts take a broad view of relevance when it comes to examination for discovery.  Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, further addressing this topic.
In the recent case (Burgess v. Buell Distribution Corporation) the Plaintiff suffered “very serious personal injury” in a motorcycle accident.  He was operating a motorcycle with a side-car when he was injured. He sued the manufacturer and other parties.  At the Defendant’s discovery the Plaintiff wished to canvass standards the Defendant had for two wheeled motorcycles (ie- motorcycles without a side-car).  The Defendant objected arguing these questions are not relevant because a motorcycle with a side-car is a “discrete three-wheeled vehicle with handling characteristics not shared by a two-wheeled vehicle.”
The Plaintiff brought application compelling answers to the contentious questions.  Mr. Justice Cullen granted the application and in doing so provided the following reasons confirming the broader scope of relevance at the discovery stage:

[10] The parties agree that the operative rule is Rule 7-2(18)(a) which reads as follows:

(18)      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 ….

[11] The plaintiff takes the position that it is the pleadings which determine the issues and hence the question of relevance citing the decision of the British Columbia Court of Appeal inCominco Ltd. v. Westinghouse Canada Ltd., [1979] B.C.J. No. 1963.

[12] The plaintiff says the Court on an application such as this ought not to consider evidence in rendering a decision as to do so prejudges the effect of the examination for discovery and usurps the role of the trial judge.

[13] The defendant on the other hand says the only way to determine relevance within the meaning of the Rule is to consider what the available evidence is likely to establish. The defendant says if I consider the evidence of its expert it will establish that the questions concerning the characteristics of a two-wheeled vehicle are simply not relevant to the characteristics of a three-wheeled vehicle and should not be permitted under the Rule.

[14] The plaintiff on the other hand submits that even if I do consider the evidence the question is simply not so clear cut that I could make a determination without effectively usurping the role of a trial judge.

[15] As I see it, this is not a case where it could be said that on the pleadings there is no relevance to the questions being posed. As Seaton J.A. pointed out in West Coast Transmission:

It is not appropriate to plead evidence and the information respecting these other cables is essentially evidence from which the Court will be asked to conclude that the defendants knew or ought to have known of a danger. The respondents relied upon an affidavit to the effect that evidence of non-tech cable would not be a guide to the propensities of tech cable. The respondents refused to answer questions on that subject. I do not think it appropriate to conclude on affidavit evidence that a proposition is unsound and exclude the area from the examination. That is what was done here. It was said then that before there could be examination with respect to cable other than tech cable the appellant would have to establish that the other cable was similar. I know of no procedure whereby a party can prove an aspect of his case before discovery. The decision on similarity ought to be made at trial, not before trial, and particularly not before discovery.

[16] In my view, on that basis the order sought should go. If I am wrong in that however, I am still not satisfied having considered the evidence put before me that there is not some relevance to the questions being posed. There is a difference between the views of the experts as to the possible cause of the accident and whether it resides exclusively in the characteristics of the vehicle as a three-wheeled vehicle or whether it has its source in the component parts of the two-wheeled vehicle. And that is a question essentially for the trial judge.

[17] In his affidavit of December 12, 2011, the plaintiff’s expert deposes as follows in para. 6:

6.         The steering assembly of the Harley-Davidson motorcycle sidecar is identical to that found on the solo motorcycle. The underlying steering assembly response of the base solo motorcycle will behave in the same manner as that same unit will respond when attached to the motorcycle sidecar. This is because they are exactly identical mechanical devices. What will be different is the level of the response of the solo motorcycle vehicle compared to the level of response of the motorcycle sidecar vehicle and the path each vehicle takes due to shaking (oscillations) of the steering assembly once that shaking is initiated.

[18] While I do not in any way wish to be taken as resolving the issue which undoubtedly is a very complex one, I am simply not able to say that the characteristics of some components of the two-wheeled vehicle as revealed by the questions posed may not be germane to the effect upon the three-wheeled vehicle at issue in this lawsuit and, accordingly, for those reasons, I will grant the application of the plaintiff.