Tag: Lewis v. Lewis

Examination For Discovery and Continuations – A "Heavy Onus"


One of the welcome developments in the New BC Supreme Court Rules is a cap on the length of examinations for discovery.   Examinations in conventional lawsuits are capped at 7 hours under Rule 7-2(a) and limited to 2 hours in Fast Track trials.  The Court has a general power to permit lengthier examinations in appropriate circumstances.
When parties conclude an examination for discovery there are typically requests for further information and parties usually agree to a follow up discovery to address matters arising from the further disclosure.  When a party wishes to further explore a topic already covered, however, they are usually not permitted to have a continuation of the discovery.  Reasons for judgement were released today addressing this area of law.
In today’s case (Lewis v Lewis) the Plaintiff was involved in a 2005 motor vehicle collision.  The Plaintiff alleged injury.  The Defendant denied that she was injured and alleged that her injuries were pre-existing.  In the course of the lawsuit the Plaintiff provided various medical records including pre-accident records.
The Plaintiff attended a discovery and was examined with respect to her injury claim.   After concluding the discovery the Defendants requested a continuation to further explore the issue of the Plaintiff’s pre-accident health.  The Plaintiff opposed arguing that she had already been examined with respect to this topic.  Mr. Justice Harvey agreed with the Plaintiff and dismissed the application for a further discovery.  In doing so the Court provided the following useful reasons:

[8]             The case law stands for the proposition that where a further examination for discovery is sought, there is a heavy onus on the applicant to justify that further examination, and that to justify same they must demonstrate that the complexion of the case has materially changed as a result of the passage of time, new heads of damage are being advanced, or intervening events having occurred since the last discovery, which would materially alter the prosecution of the case and the defence of it.

[9]             Alternatively, a party could produce evidence to show that full and frank disclosure was not made at the first discovery.

[10]         Here that is not the case. Here the defendant, together with its medical advisor, failed to see what was there to be seen. Specifically, each failed to note and act upon the references to previous shoulder complaints in clinical records that were in the hands of both the medical practitioner and the solicitor conducting the discovery.  I am not satisfied that the heavy onus that is set forth in the decisions I have been referred to, one of which was Sutherland (Public Trustee of) v. Lucas, has been met.

[11]         Accordingly the application for a further discovery by the defendant is dismissed.

Late Examinations for Discovery and the New BC Supreme Court Rules


Reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, discussing the right to conduct an examination for discovery in the two weeks proceeding trial under the New Civil Rules.
In today’s case (Lewis v. Lewis) the Plaintiff sued for damages as a result of injuries sustained in a motor vehicle collision.  ICBC was a statutory third party in the lawsuit and failed to exercise their right to examine the Plaintiff for discovery in a timely fashion.  ICBC served the Plaintiff with an appointment to attend a discovery 10 days before trial.  The Plaintiff objected arguing, amongst other things, that discoveries are not permitted within the two weeks prior to trial.  ICBC applied for an order compelling the Plaintiff to attend.
In support of their application ICBC argued that the prohibition preventing discoveries in the two weeks preceding trial no longer exists in the new BC Supreme Court Civil Rules.   Mr. Justice Harvey, while not directly addressing this issue, dismissed ICBC’s motion and in doing so made it clear that the rules of Court operate so as to make it difficult for a party to be permitted to conduct a late discovery.  Mr. Justice Harvey provided the following reasons:
[7]  In response to (ICBC’s argument) Mr. Parsons, on behalf of the plaintiff, says that a clear reading of Rule 12-4(3) makes clear that the new rules still contemplate a prohibition against any step, including an examination for discovery, within the period prescribed in Rule 12-4(2).
[8] Rule 12-4(2) reads
A trial certificate must be filed at least 14 days before but not more than 28 days before the scheduled trial date.
[9] I am not persuaded in these circumstances I need to decide that very interesting issue, because I have also been referred to Rule 12-4(6) which says that:
A party who fails to file a trial certificate under subrule (1) is not, without leave of the court, entitled to make further applications.
[10]  The third party has not filed a trial certificate nor could they have given the requirement to have conpleted examinations for discovery as part of the requirement of “readiness”.  Now, 10 days before trial, it is too late to do so.
[11]  Counsel for the third party see this as an excuse allowing them to, at this late date, seek the Court’s leave for the application to compel the plaintiff’s attendance at the proposed discovery.
[12]  That, with respect, is disingenuous.  It has been open to the third party to conduct its discovery since the time it became a party.  That was in October of 2008.
[13]  Instead, the third party has chosen to rely on the defendant to take the lead in this litigation…
[14]  The third party has, at the last moment, unilaterally set down an examination for discovery over the objections of counsel for the plaintiff as to timing.  Counsel is busy with trial preparation for a 15 day jury trial.
[15]  The third party failed to provide conduct money and failed to file a trial certificate in accordance with the rules…
[16]  Contrary to the Rules, leave was not sought to bring the application when short leave was sought before the Master who heard the application.  The application for short leave was brought without notice and counsel for the plaintiff was unable to draw to the Court’s attention the failure of the third party to (1) require leave for their application and (2) failure to provide conduct money to the plaintiff.
[17]  In those circumstances, I am not prepared to gran the third party the leave required to bring this motion.

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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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