The current BC Supreme Court Rules cap examinations for discovery in a conventional prosecution at 7 hours unless the Court otherwise orders. Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing one circumstance when prolonging this cap was appropriate.
In the recent case (Dhami v. Bath) the Plaintiff attended 8 hours of discovery. A translator was used who “did a poor job“. The Court exercised its discretion to allow a further 2 hours of discovery and in doing so provided the following reasons:
 This application must be determined on the evidence before the court. The only evidence with respect to the examination itself are the excerpts revealing the translator’s poor performance which objectively interfered with counsel’s ability to conduct the examination in an efficient manner. Put another way, I find that the translator’s conduct made it reasonably impractical to complete the examination for discovery in the time spent to date.
 I am not persuaded that the examination of the plaintiff was concluded such that the defendant must meet the heavy onus suggested in Hogg v. Hansen, 2007 BCSC 958, for a second examination. The additional two hours is allowed to the defendant to complete the one and only examination.
Adding to this site’s archived posts relating to examinations for discovery under the BC Supreme Court Rules, reasons for judgement were released this week addressing whether a party may self-record an examination for discovery. In short the answer is no.
In this week’s case (Rassaf v. SNC-Lavalin Engineers and Constructors Inc.) the Plaintiff indicated he wished to record his own discovery. The Defendant brought an application prohibiting him from doing so. In granting the application Mr. Justice Goepel provided the following reasons:
 A somewhat similar situation arose concerning the power of parties to videotape examinations for discovery. In Ramos v. Stace-Smith (2004), 24 B.C.L.R. (4th) 333, Mr. Justice Fraser allowed an examination to be videotaped.
 That decision was subsequently followed in Ribeiro v. Vancouver (City), 2004 BCSC 105. The Ribeiro case was appealed. The appeal judgment is found at 2004 BCCA 482. On appeal, Madam Justice Southin held that the decision in Stace-Smith was wrongly decided and similarly the chambers judgment in Ribeiro, which had followed Stace-Smith, was similarly wrongly decided. In reaching her decision, she noted that there was no provision in the Rules for an order for videotaping. She said at para. 3:
There is no provision in the Rules of the Supreme Court of British Columbia for the order which was pronounced in this case. Since time immemorial, that is to say since examinations for discovery were first permitted in this province which I think now is about 80 or 90 years ago, they have never been filmed by any method at all. If they are to be, there must be a change in the Rules of the Court to permit or authorize such a practice, or, in my view, there must be at least a practice direction emanating from the whole of the Supreme Court of British Columbia on the point. In making the latter remark, I am not saying that a practice direction would necessarily be valid in such circumstances. Matters of practice and procedure in the court below must be governed by its Rules, and those Rules must be duly enacted under theCourt Rules of Practice Act. It is certainly open to the Lieutenant Governor in Council to permit what Mr. Potts says is a very good idea but she has not done so. It is not appropriate for a single judge of the court below to engage in matters of practice and procedure in what I call judicial individualism. The course of the court below is the law of the court and the course has never been to engage in such a practice.
Those words apply in these circumstances.
 It has not been the practice that individual parties are allowed to record examinations for discovery. There is no provision for same in the Rules. In these circumstances it would not be appropriate for me to allow such to occur. Accordingly, I am granting the defendant’s order, and the plaintiff will be prohibited from recording by any means his examination for discovery.
As previously discussed, one limitation when using examination for discovery evidence at trial is that the evidence is only admissible against the party that was examined. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this limitation finding it is equally applicable during a summary trial.
In this week’s case (Liversidge v. Wang) the Plaintiff sued the Defendant’s for damages. The Defendants brought Third Party proceedings but the Plaintiff never extended the claim against the Third Party. In the course of the lawsuit the Plaintiff examined the Third Party for discovery and then set down a summary trial intending to rely on portions of the examination transcripts as against the Defendant. In disallowing this Mr. Justice Burnyeat provided the following reasons:
12] Rule 12-5(46) (formerly Rule 40(27) states that evidence given at the examination for discovery by a party or a person under Rule 7-2(5) to (10) may be tendered as evidence by a party adverse in interest, but is only admissible against the party examined. This concept was explained by Arnold-Bailey J. in Biehl v. Strang, (2011) 21 B.L.R. (4th) 1 (B.C.S.C). as follows:
I note in Bower v. Cominco Ltd. (1998), 53 B.C.L.R. (3d) 322, 19 C.P.C. (4th) 22 (B.C. S.C.), it was held that the predecessor rule, R. 40(27) of the Rules of Court, B.C. Reg. 221/90 [Predecessor Rules], was enacted in response to Robinson v. Dick (1986), 6 B.C.L.R. (2d) 330 (B.C. S.C.), which permitted the admission of discovery evidence against co-defendants. In Beazley v. Suzuki Motor Corp., 2009 BCSC 1575 (B.C. S.C.) [Beazley] at para. 26, it was held that R. 40(27) only permitted discovery evidence to be admitted against the adverse party examined. (at para. 77)
 The decisions outlined in Biehl, supra, and Rule 12-5(46) are clear. The evidence given on an examination for discovery is admissible, but it is only admissible against the adverse party who was examined. Rule 12-5(46) applies equally to a Trial and a Summary Trial.
 Under Rule 7-2(1), “a party to an action must make himself or herself available for examination for discovery by parties of record to the action… who are adverse in interest to the parties subject to the examination”. The Plaintiffs did not commence an action against the Third Party so as to make the interest the Third Party adverse to the interest of the Plaintiffs. Here, the Plaintiffs did not have the right to examine the Third Party for discovery. Despite the fact the Third Party consented to being discovered by the Plaintiffs, that consent does not then make the evidence that arises from that discovery available for use by the Plaintiffs against the Defendants.
 The evidence provided at the Examination for Discovery of a representative of the Third Party cannot be used on this Summary Trial Application to assist the Plaintiffs in advancing the claim that they make against the Defendants.
Parties to a BC Supreme Court lawsuit can be forced to attend an examination for discovery set up by opposing litigants. Failure to attend can have a variety of consequences. Demonstrating one such consequence in action, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, punishing a non-attending part with increased costs.
In the recent case (Stanikzai v. Bola) the Defendant was found 75% at fault for a motor vehicle collision and was ordered to pay damages of just over $189,000. Prior to trial the Defendant failed to appear at an examination for discovery. Mr. Justice Smith found this behaviour was “reprehensible” and ordered that the defendant pay post trial costs at a level greater than they otherwise would have been. In reaching this decision the Court provided the following reasons:
 Parties to civil litigation are required by R. 7-2(1) of the Supreme Court Civil Rules, to make themselves available for examinations for discovery. It is not something a litigant can choose to do or not do on the basis of her own convenience. If Ms. Bola was unable to attend the examination on the day it was set, her obligation was to notify her counsel and discuss alternate dates. Instead, she simply failed to show up.
 I also find it difficult to believe that she had no knowledge of the false information her husband was apparently providing to defence counsel when a second discovery was requested. Ms. Bola showed a complete and unacceptable disregard for her duties under the law. I stress this was not the fault of defence counsel, who attempted to get her cooperation…
 I find that the defendant’s refusal to appear at discovery meets the definition of “reprehensible conduct” and I would not hesitate to award special costs if I thought that conduct had affected the outcome of the trial. But, in the specific circumstances of this case, I find that there is another, more proportionate rebuke available.
 Under normal circumstances the plaintiff, having been found 25 per cent responsible for the accident, would recover only 75 per cent of his costs. This arises from s. 3(1) of the Negligence Act, RSBC 1996, c 333:
3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.
 Although payment of costs in proportion to the degree of liability is the default rule, the court has discretion to depart from it. That departure must be for reasons connected with the case, with the principle consideration being whether application of the usual rule will result in an injustice: Moses v Kim, 2009 BCCA 82 at para 70.
 In these circumstances, I find that the interest of justice can best be served by depriving the defendants of the reduction in costs that they would otherwise benefit from and I award the plaintiff the full costs of this action.
Adding to this site’s archived caselaw addressing examination for discovery, useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, making the following points:
1. silence (or even agreement) to a discovery request does not compel a party to comply with it
2. the court has no power to order that answers to questions outstadning at an examination for discovery be put in writing
3. the narrower scope for document production requirements is not circumvented simply by asking for production of documents at an examination for discovery
In this week’s case (LaPrarie Crane (Alberta) Ltd. v. Triton Projects Inc.)Master Bouck provided the following reasons addressing these points:
 As for the outstanding requests from the examinations, Triton submits that when there is no objection to production on the record — or indeed, where a positive response from the examinee is made — such requests must be answered : Winkler v. Lower Mainland Publishing Ltd., 2002 BCSC 40 at para. 17. In other words, the party being examined is not able to reflect upon requests unless counsel states on the record that the request will be taken under advisement or an objection is raised. Nor can a party have a change of mind upon reflection, or upon taking legal advice.
 The principle that a party should not be permitted to subsequently revoke agreements made at an examination for discovery is laudable. However, silence does not mean consent: Gellen v. British Columbia (Public Guardian and Trustee of), 2005 BCSC 1615 at para. 17 (S.C.). Furthermore, it is difficult to see how the principle enunciated in Winkler can be applied after the introduction of time limited examinations for discovery: Rule 7-2 (2).
 If counsel is expected to pause and consider the relevancy of every question asked of the witness, the time allotted for a party’s examination might well be consumed by objections, interventions and even argument. In recent decisions, the court has strongly discourage such intervention at examinations for discovery: see More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166 at para. 13 foll’g Kendall v. Sun Life Assurance Co. of Canada, 2010 BCSC 1556 at para. 18. Given this change in procedure, I decline to follow Winkler.
 If a person declines to provide the additional information requested, the examining party is not without a remedy: Rules 7-2 (22)-(24). This appears to be the remedy pursued on this application. Nonetheless, the court has no power to order that answers to questions outstanding at an examination for discovery be put in writing: Diachem Industries Ltd. v. Buckman (1994), 91 B.C.L.R. (2D) 312 at p. 314 (S.C.) [my emphasis].
 Finally, it is acknowledged that under the SCCR, the duty to answer questions at an examination is broader than the duty to produce documents: More Marine Ltd. v. Shearwater Marine Ltd., supra, at para. 7. However, a party does not get around the application of Kaladjian v. Jose principles by asking for the documents at these examinations: Maxam Opportunities Fund (International) Ltd. Partnership v. 893353 Alberta Inc., 2012 BCSC 553.
Update July 19, 2013 – the below decision was upheld in reasons for judgement released today by the BC Court of Appeal
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing the introduction of examination for discovery evidence at a summary trial.
In the recent case (Mawani v. Pitcairn) the Plaintiff was injured in a pedestrian/vehicle collision. Fault was disputed and following a summary trial Mr. Justice Kelleher found both parties equally to blame.
In the course of the summary trial the Plaintiff tendered an affidavit which attached the transcript from the Defendant’s examination for discovery as an exhibit. The Plaintiff’s application response clearly indicated that the Plaintiff was only relying on specific questions and answers from the examination. Despite this the Defendant argued that the entire transcript was put in evidence by the Plaintiff therefore the Plaintiff was bound by the unhelpful answers.
Mr. Justice Kelleher rejected this argument finding that in circumstances where the Plaintiff clearly identifies the specific questions he is relying on such a harsh result is not justified. The Court provided the following reasons:
At the hearing before me, the defendant argued that the entire examination for discovery of the defendant is before me. That is because of para. 46 of the earlier ruling:
 … Neither the deposition evidence nor Mr. Pitcairn’s examination for discovery are tendered as part of Mr. Pitcairn’s case. If they are before me at all, they are before me as part of Mr. Mawani’s case. His evidence, as matters currently stand, includes both the entirety of the examination for discovery evidence, and an affidavit from Ms. Forrest disclosing those portions of the examination for discovery he intends to rely on. It also includes the entirety of the deposition evidence, but as I already noted, the rules do not provide for the admissibility of the deposition on summary trial unless arguably the court makes an order for its admission. As I have also noted, there has been no application yet made by any party for that deposition evidence to be received in whole or in part.
I disagree with the defendant that the entire examination for discovery is before me. Mr. Justice Harris went on to direct, at para. 69, that plaintiff’s counsel file an application response which sets out the material on which he relies as part of the evidence in his case. Mr. Gourlay did that on February 29, 2012.
Mr. Arvisais argues that the entire transcript is in evidence. In a conventional trial, the transcript would not be an exhibit.
The application response filed February 29, 2012, makes it clear that the plaintiff is relying on certain questions and answers only. Despite Mr. Justice Harris’s statement at para. 46 of his reasons, which were published before the application response was filed, the plaintiff does now make clear what questions and answers are relied upon. The attachment of the entire transcript of the examination for discovery is consistent with the “proper procedure” outlined by Burnyeat J. in Newton v. Newton, 2002 BCSC 14.
In my ongoing efforts to archive BC caselaw addressing examinations for discovery, reasons for judgement were released this week by the BC supreme Court, Prince George Registry, discussing the scope of permissible questions.
In this week’s case (Manojlovic v. Currie) the parties were involved in litigation with respect to a purchase and sale agreement relating to lakeshore property. In the course of the lawsuit the Defendant was examined for discovery during which time he was asked to “tell me in your own words what this lawsuit is all about“.
The Defendant objected arguing this question was inappropriate. Mr. Justice Tindale disagreed and concluded this question was fair game. In doing so the Court provided the following reasons:
13] The tone of the examination for discovery was set by Mr. Hall, counsel for the defendants William Richard Currie and Patsy Arlene Currie, at the beginning of the examination. Mr. Dungate asked the defendant William Richard Currie the following:
9 Q One of the things I want to accomplish today, Dr. Currie, is I’d like to better understand this lawsuit from your perspective and your wife’s, so perhaps you can tell me in your own words what the lawsuit is about.
Mr. Hall: Stop. That’s not the process, Mr. Dungate. You ask questions; he answers them.
10 Q Mr. Dungate: This is my examination for discovery. I’m asking the questions. I just asked Dr. Currie to explain to me what the lawsuit is about. So, what’s the lawsuit about, Dr. Currie?
 The plaintiff wishes to ask questions relating to the pleadings in these proceedings. These types of questions were objected to during the examination for discovery. However, Mr. Wright, who was Mr. Hall’s agent for this application, is not opposed to these types of questions but rather argues that they should not relate to questions of law, or questions that had already been asked and answered at examination for discovery.
 In my view, the questions asked by Mr. Dungate relating to the pleadings were appropriate. I also agree with Mr. Wright that these types of questions should not relate to questions of law…
 An examination for discovery is similar to cross-examination at trial. The plaintiff, in this case, should have been given a wide latitude to explore the relevant issues in the time allotted by the Rules. The Plaintiff was not able to do this on many of the issues that he was trying to explore.
 I order that the defendant William Richard Currie shall attend and submit to a further examination for discovery which will have a maximum duration of four hours. This examination for discovery shall be set in consultation with counsel for the plaintiff and counsel for the defendant William Richard Currie.
 I order that the plaintiff will be at liberty to ask questions relating to the “pleadings” and the letter marked as “Exhibit 29” at the examination for discovery held on March 9, 2012.
Unilaterally scheduled discoveries, while technically permissible, are a frowned upon practice. Reasons for judgement were published this week by the BC Supreme Court, Kelowna Registry, critically commenting on such a tactic.
In this week’s case (Morgan v. BC Transit) the Plaintiff sued for damages as a result of a motor vehicle incident. In the course of the litigation issues arose with respect to scheduling the discovery of the Plaintiff. The Defendant unilaterally set a discovery date which the Plaintiff indicated he could not attend. After non-attendance the Defendant brought a motion seeking to dismiss the Plaintiff’s claim but eventually backed away from this harsh request and instead sought an order that the Plaintiff attend discovery on another date and further seeking costs.
The court directed the parties to get on with the discovery and reserved dealing with costs consequences until this took place. Ultimately Mr. Justice Betton dismissed the Defendants application and ordered that costs be paid to the Plaintiff. In doing so the Court provided the following comments regarding unilaterally set examinations for discovery:
 Obviously, the system would be challenged if appointments were routinely taken out without consultation with opposing parties and applications for dismissal followed non-attendance at such appointments. There is a balance that requires considered utilization of Rule 22-7(5). Circumstances must justify the application. Those who have an obligation to submit to an examination for discovery must cooperate reasonably in allowing the examinations for discovery to occur. Indeed it is a relatively unusual application and quite rare that such a severe remedy is granted. The reasons for this are numerous and most are self-evident. Most parties are represented and counsel are well aware of their own and their clients’ obligations. They make accommodations appropriately and reasonably to assist in achieving the objectives of the Rules. Even those who are not represented understand that procedural rules exist, and are to be followed, and there are consequences for failing to do so.
I note in this case, there is no evidence before me indicating that there was any particular urgency to having the examination for discovery of the plaintiff concluded by the end of December. The trial date, as I noted, is set for December of 2012. When the December 1 date was adjourned on November 8, there was some discussion, but nothing done to formally set the examination for discovery until November 28, approximately three weeks later, when the issues quite quickly emerged. In this case, it is of significance that plaintiff’s counsel advised on December 18, approximately one month before this application was filed, that he had become available to have the examination for discovery of the plaintiff concluded in early January 2012. That is now some two months ago.
There are cases when parties with or without counsel either use the Rules or ignore them to frustrate another’s legitimate efforts to prepare their case. In my view, this is not one of those cases. There are also cases where the Rules are used in ways which serve to defeat the broader objectives as described in the Rules of having cases proceed in an efficient and fair way. In all of the circumstances, it is my conclusion that the defence in these circumstances was overly aggressive in its utilization of this Rule and making an application to have the action dismissed with costs to the defendants; pressing to set the date on December 15 without consultation or without agreement was not necessary. Of most significance is the fact that before this application was set, plaintiff’s counsel had advised that they were now available to accommodate the examination for discovery occurring in early January. That discovery would have long since been concluded, rather than now being set in March and this application having had to proceed.
In all of the circumstances, I decline to grant any costs thrown away to the defence for the examination for discovery of December 15, 2011.
With respect to the costs of this application, in the circumstances, the defence will not have its costs of this application. The plaintiff will have its costs.
Two useful, albeit unreported, cases were recently provided to me dealing with objections to two fairly common examination for discovery questions and dealing with their propriety.
In the first case (Blackley v. Newland) the Plaintiff was injured in two motor vehicle collisions. In the course of examining the Defendant for discovery, the Plaintiff’s lawyer asked a series of “do you have any facts known or knowable to you” questions addressing the specific allegations set out in the Pleadings such as:
- do you have any facts known or knowable to you that relate in any way to whatever injuries Mr. Blackley received in this collision?
- do you have any facts known or knowable to you that relate in any way to what pain or suffering Mr. Blackley has had because of this collision?
At trial, the Plaintiff proposed to read this series of questions and the answers that followed to the Jury. Mr. Justice Williams held that while the exchange should not go to the jury as its prejudicial effect outweighed its probative value, the series of questions was entirely appropriate in the context of an examination for discovery. Mr. Justice Williams provided the following comments:
 Speaking generally, in this case, I do not find that the questions asked at the examination for discovery are improper. They can be said to have been substantially informed by the statement of defence that was filed by the defendant. As is usual, that statement of defence is replete with denials and positings of other alternative propositions.
 The examination for discovery conducted by plaintiff’s counsel was obviously shaped in part as a response to the pleadings of the defendant and was an appropriate use of the examination process, specifically to discovery the defendant’s case.
In the second decision (Evans v. Parsons) the Defendant put a medico-legal report to the Plaintiff and asked the broad (and arguably compound) question “Okay. Was there — the facts in Dr. Aiken’s report, was there anything that struck you as incorrect?“. The Plaintiff’s lawyer objected to the question resulting in a chambers application. The Defendant argued the question was fair and further that the limited two hour discovery in Rule 15 matters allowed this type of a short cut question.
Master Caldwell disagreed finding the question was too broad and vague. In doing so the Court provided the following reasons:
All right. Thank you. Applications to have a subsequent examination for discovery done specifically to address what I do find as an extremely general and vague question which was asked and objected to at the first discovery. That comment probably leads one to surmise the application will be dismissed, at it will. There was an opportunity to specify what facts were being referred to, and counsel refused to further qualify. There’s a reason for short discoveries in rule 15-1 cases. Two hours were granted. If this was an important question, it could have been addressed earlier in the discovery. I don’t, in the circumstances of the context of the question, believe it to have been a fair question to the plaintiff. It was far too general, and, as I say, defence counsel refused the opportunity to further qualify or narrow it. I’m not going to force the Plaintiff to answer such a general question. Application is dismissed. Costs to the Plaintiff.
To my knowledge these judgements are not yet publicly available. As always, I’m happy to provide a copy to anyone who contacts me and requests copies.
As previously discussed, one of the limits of examination for discovery evidence at trial is that it is generally only admissible against the person being examined. Rule 12-5(46) permits the Court to make exceptions to this restriction in appropriate circumstances. Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, addressing one such exception.
In the recent case (Yamakami v. Whittey) the Plaintiff was injured in an intersection crash. Fault was contested. In the course of the lawsuit the Defendant was examined for discovery. Prior to trial the Defendant died.
The Defendant’s lawyer wished to rely on his examination transcript at trial in support of the Defence case. Mr. Justice Fitch allowed this finding it was necessary to do so. Interestingly, although the Court admitted the evidence finding that an examination for discovery created the necessary safeguards to meet the principled exception to the hearsay rule, the Court ultimately placed little weight on the Defendant’s version of events. In allowing the evidence to be introduced Mr. Justice Fitch provide the following reasons:
 Mr. Whittey, who was 81 years of age when the accident occurred, died before trial but after his examination for discovery was completed on May 11, 2010. Counsel for the defendants applied at the outset of the trial to have his examination for discovery admitted in evidence for the truth of its contents under the principled approach to the hearsay rule. The application was opposed. As Mr. Whittey was deceased at the time of trial, the necessity criterion was met. Counsel for the plaintiff argued that despite the existence of process-based substitutes compensating for the loss of an ability to engage in contemporaneous cross-examination of the defendant (the oath, cross-examination and the existence of a verbatim record of the examination for discovery) the evidence Mr. Whittey gave on the examination for discovery was so inherently unreliable that the test of threshold reliability at the admission stage was not met. In oral reasons for judgment delivered November 4, 2011, I concluded that the process-based compensators present in this case provided a satisfactory basis for evaluating the reliability of the evidence in issue. Accordingly, I exercised my discretion to admit the evidence but made clear that it was for me, at the end of the day, to determine the ultimate or actual reliability of the evidence and the weight it should be accorded.