Examination For Discovery Continuations When Cases Removed From Fast Track
Typically the BC Supreme Court rules allow examinations for discovery to last up to 7 hours unless a case is put into the fast track Rule 15 in which case examinations are capped at 2 hours. What happens when a case is prosecuted and discoveries take place under the fast track and then the case shifts into conventional litigation? Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Brown v. Dhariwal) the Plaintiff was injured in a 2008 collision. She sued under Rule 15 and a discovery of under 2 hours was conducted which was adjourned subject to requests. The matter then was removed from the fast track and a further discovery was sought. The parties disagreed on the timelines and entitlement to further discovery. In concluding that the appropriate time was 7 hours of total examination counting the time already spent Madam Justice Fleming provided the following reasons:
[20] The question then becomes did the Master err in concluding the defendants did not have a right to a further seven hours of discovery in the circumstances? In my view he did not and decided this aspect of the application correctly. The Rules of Court do not specify what happens when a case is removed from fast track. Any reconvening or continuation of the first discovery, however, would have to occur pursuant to Rule 7-2. There is no dispute that both Rules 7-2 and 15-1 provide a party to an action with a right to one examination for discovery of a party adverse in interest.
[21] The import of the defendants’ argument that they are entitled to seven hours as a right, is that in every case where an action moves from fast track to regular and discoveries have been adjourned as opposed to finished, parties are then entitled to an additional seven hours of discovery.
[22] Bearing in mind the object of the Rules and the implications of such an interpretation for parties who begin under the regular track, I cannot agree with this interpretation. What the defendants are entitled to is a continuation of the adjourned discovery without the constraint of the two-hour time limit that applies in the fast track.