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Tag: Rule 15-1(11)

Pursuing "Unproductive Trains of Inquiry" Fatal in Request for Further Examination for Discovery

Written by admin on . Posted in BCSC Civil Rule 15, Uncategorized. 54 Comments on Pursuing "Unproductive Trains of Inquiry" Fatal in Request for Further Examination for Discovery

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the Court’s discretion to allow a party to conduct an examination for discovery beyond the 2 hour cap called for in Fast Track proceedings.
In today’s case (Henneberry v. Humber) the Plaintiff sued for damages following a collision.  The Plaintiff was examined for discovery for the full two hours allowed under the fast track.  The Defendant brought an application for further time but the court dismissed this finding the examination that was conduced pursued “unproductive trains of inquiry“.  In reaching this conclusion Mr. Justice Romilly provided the following reasons:
[3]             Counsel for the defendant in this particular case indicates there are many reasons for that. It is a complicated case, liability is in issue, and the plaintiff refused to sign a notice to admit certain facts which could have shortened the length of this examination for discovery.
[4]             Counsel for the plaintiff has taken me through the examination for discovery and pointed out many instances where counsel for the defendant has squandered the opportunity to fully take advantage of this two-hour limit that was placed upon these proceedings.
[5]             Two of the leading members of our court, if I could say that, in civil matters, Madam Justice Susan Griffin and Mr. Justice N. Smith, have both written judgments on these new rules. In one case, the case ofMore Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, Mr. Justice N. Smith, says this at paras. 12-13:
[12]      The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.
[13]      As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. This interplay was described in Kendall at para. 18:
A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery.
[6]             In this particular case, counsel for the plaintiff has taken me to the transcript and I am satisfied that there was far too much time spent pursuing unproductive trains of inquiry. As a result, the two-hour limitation passed by without counsel for the defendant being able to deal with all the issues with which they wanted to deal.
[7]             I am not satisfied that this is a case where I should exercise my discretion to give any further time for further examinations for discovery. The application will be dismissed. Thank you.
 

Examination for Discovery Caselaw Update: Scope of Proper Questions

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 15, BCSC Civil Rule 7, Uncategorized.


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:
[10]  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.
[11]  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.