Plaintiff Expert Witness Allowed to Attend Defendant Examination for Discovery


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.

Burgess v. Buell Distribution Corporation, examination for discovery, Inherent Jurisdiction of the Court, Mr. Justice Grauer, Proportionality, Rule 1, Rule 1-3, Rule 1-3(2), Rule 7, Rule 7-2

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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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