Examination For Discovery Objections Canvassed

Adding to this site’s archived procedural cases dealing with examinations for discovery, reasons for judgement were released today by the BC Supreme Court, Duncan Registry, canvassing the appropriateness of several questions relating to liability.
In today’s case (Higginson v. Kish) the Plaintiff sued the Defendant for damages following a collision for which fault was disputed.  At discovery the Defendant objected to the following three questions:

Do you have any possible explanation why you wouldn’t have seen Mr. Higginson’s vehicle approaching in the left lane?

Will you agree with me that it would have been more reasonable to have approached highway speed before changing lanes?

And you were aware that prior to changing lanes, that you could expect vehicles approaching at highway speed, 80 kilometres an hour? 

In finding the first and third questions fair but the second improper Mr. Justice Johnson provided the following reasons:

[5]             It seems to me that while one of the questions, the first one, “Do you have any possible explanation why you wouldn’t have seen Mr. Higginson’s vehicle approaching in the left lane” may have been inelegantly phrased. What it was getting at or should have been getting at is, “Was there anything obscuring your ability to see to the rear, as Mr. Higginson approached?”

[6]             That does not call upon the witness to speculate, it seems to me, if the question is properly phrased, nor does it call upon the defendant to speculate. It is relevant to the issues, that is was there anything preventing the witness from seeing to his rear. That question, together with any subsidiary questions, ought to be answered.

[7]             Question 295, which was “Will you agree with me that it would have been more reasonable to have approached highway speed before changing lanes,” does not require an answer, in my view. It is not an appropriate question to ask a witness. What that really asks the witness to do is to make the judge’s decision for the judge, and that is answer questions that involve matters of law, that is whether the activities or actions of the defendant were reasonable. I will not order the witness to answer that question or anything relating to that question.

[8]             Question 310:  “And you were aware that prior to changing lanes, that you could expect vehicles approaching at highway speed, 80 kilometres an hour?”  That expectation is a perfectly legitimate and reasonable thing to explore on examinations for discovery. The knowledge of the defendant as to the speed at which traffic was or might reasonably be expected to be travelling at the time of the accident, is permissible as a topic for exploration on discovery.

[9]             I will note that, of course, at examinations for discovery, questions of relevance still are important. But those questions of relevance are finally determined at the trial, not at the discovery, and ordering the defendant to answer question 234 and 310 says nothing about whether or not those answers or any of the evidence developed is admissible at the trial.

[10]         So the defendant will attend, for no more than an hour, to answer questions 234 and 310, and any supplementary questions legitimately and properly flowing from those two questions.

bc injury law, examination for discovery, Higginson v. Kish, Mr. Justice Johnston

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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