Examinations for Discovery and Location: When Parties Live Outside BC


I recently looked into the issue of location for examinations for discovery where a party to the lawsuit resides out of the Country.  I came across a useful decision (Bronson v. Hewitt) addressing this issue under the former Rules of Court.
In Bronson, a lawsuit was started in the BC Supreme Court, Vancouver Registry.  The trial was scheduled to be heard in Vancouver and all the lawyers involved in the case practiced in Vancouver.  The Defendants lived in South Carolina.  The Plaintiff wanted to force the Defendants to come to Vancouver for examination for discovery.  The Defendants opposed arguing the discovery should take place in South Carolina.  Mr. Justice Goepel agreed with the Defendants.  In doing so the Court provided the following reasons:

Lewis and Browning rely on R. 27(14).  That Rule reads:

Unless the court otherwise orders, or the parties to the examination consent, an examination for discovery shall take place at a location within 10 kilometres of the registry that is nearest to the place where the person to be examined resides.

Lewis and Browning submit that R. 27(14) supports their contention that prima facie a party has a right to be examined at their residence and that the plaintiffs have not filed any material which would lead the court to rule otherwise.

In Banque Indosuez v. Canadian Overseas Airlines Ltd. et al., [1989] B.C.J. No. 930 (S.C.) Skipp L.J.S.C.  reviewed the authorities and concluded:

I respectfully adopt the reasoning of Trainor J. in Hamstra v. B.C. Rugby Union et al., Vancouver Registry C865223 (B.C.S.C.), to the effect that if anyone seeks to vary the prima facie location being the residence of the person sought to be examined the court then looks at what is just and convenient for the person to be examined rather than for the solicitor of the person to be examined.

In Lo v. Lo[1991] B.C.J. No. 3005 (S.C.) Master Wilson stated:

I understand Banque Indosuez to be authority for this principle, that subrule 14 is the primary determinant of the place for the examination for discovery of persons residing outside of British Columbia.

If the prima facie rule is to be changed then the court looks at what is just and convenient for the person to be examined, not for counsel.

I am of a similar view.  The default position is that non-resident parties are entitled to be examined at their place of residence.  This conclusion is consistent with R. 27(26), which sets out that the rules governing discovery apply so far as practical to persons residing outside the province.   One of those rules is R. 27(14) which sets out that absent consent or a court order, a party is entitled to be discovered at the registry nearest to the party’s residence.  There is no reason why a non-resident party should be treated any less generously than a party who resides in British Columbia.  All parties have a prima facie right to be discovered where they reside.

The court does have the power to order that a discovery take place at a different location.  In making such an order, the court’s main consideration is the convenience of the party being examined.  Convenience of counsel is not a proper basis to compel a party to travel to Vancouver for a discovery.

In the circumstances of this case, it would not be just or convenient to compel Ms. Lewis or Ms. Browning to come to Vancouver.  They are entitled to be examined at their place of residence.  Their discovery will be in Greenville, South Carolina.

This decision was based on the former Rules of Court and to my knowledge no reported decisions address the issue of location for discovery under the New Rules.  The result, however, would likely be identical under the New Rules because the former Rule 27(14) is substantively reproduced at Rule 7-2(11) of the New Rules and the former Rule 27(26) is reproduced at Rule 7-2(27) of the New Rules.

bc injury law, Bronson v. Hewitt, examination for discovery, location of discovery, Mr. Justice Goepel, Rule 7, Rule 7-2, Rule 7-2(11), Rule 7-2(27)

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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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