Tag: Rule 7-2(1)

"Overly-Frequent Interventions, Inappropriate Objections, and an Under-Prepared Witness" Leads To Further Discovery

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering a further examination for discovery of a party due to “overly-frequent interventions, inappropriate objections, and an under-prepared witness“.
In this week’s case (CP v. RBC Life Insurance Company) the Plaintiff was suing for disability insurance coverage she had in place with the Defendant.  In the course of the lawsuit the plaintiff examined a representative of the Defendant and the discovery was “at times disruptive, or event fractious“.  The Plaintiff adjourned the discovery before using her full 7 hours.  The Plaintiff sought an order allowing her to reschedule the examination and seeking to exceed the 7 hour cap.  In finding this was appropriate Master Baker provided the following sensible comments addressing the conduct of discoveries under the new rules of court:
[14]         Ms. Hayman adjourned in part due, she says, to the frequent interruptions and interventions by Ms. Carmichael. She argues that many of the interruptions were in and of themselves improper and that, for example, questions that were objected to should be answered by court direction. But perhaps more concerning to Ms. Hayman is that, she says, it was practically impossible to establish “a flow” to the examination which is, after all, in the nature of a cross-examination.
[15]         I have reviewed the 170 pages of the transcript of the two examination intervals. There are comments, objections, interventions, questions, or the like by Ms. Carmichael on 116 of the pages. It must be said that many are typical of an examination and benign; advice to Ms. Edizel, for example, to speak up, or confirmation to Ms. Hayman that the defense does have the proffered document. But the sheer number of recorded comments and interventions lend support to Ms. Hayman’s submission…
[18]         I worry that there is a trend to more oppositional examinations for discovery and that more and more will, inevitably, result in applications such as this. While the court is always available to apply the Rules of Court and decide on procedural issues, the process for examinations for discovery never intended this level of supervision. I agree with N. Smith J. that the court should generally discourage a question by question approach that, essentially, subsidizes counsel’s fundamental duty to conduct an appropriate discovery, on the one hand, or to permit one (including its broad and wide-ranging nature, often), on the other.
[19]         Rule 7-2(1)(a) inevitably increases the responsibilities in that regard. With a seven-hour limitation, examining counsel is obviously required to be efficient, focussed, and effective in conducting his or her examination. Opposing counsel, on the other hand, is obliged to restrict his or her objections and not consume that valuable time with unnecessary objections or interventions. Quite the contrary: if one thinks strategically, why not allow one’s opponent to use the examining time with irrelevant or non-productive questions? Tedious as they may seem, they would offer an excellent response to any application for increased examination time.
[20]         But that choice would be entirely left to the examinee’s counsel. In the main, it is for him or her to avoid intruding on the examiner’s time unless clearly justified.
[21]         There is a parallel obligation on the actual examinee; with the restriction on examination time comes a heightened responsibility to inform oneself in advance of the examination, so that the time can be used fruitfully and the discovery process serve its purpose. In this case Ms. Edizel had a particularly clear obligation in that regard. She was not the case manager or supervisor during the operative times of C.P.’s claim management; both of those individuals, as I’ve said, have left RBC. It was therefore incumbent on Ms. Edizel to redouble her efforts to examine the file and its history and to inform herself as much as possible. Both Ms. Wadhwani and Ms. Rhodes were apparently unwilling to talk to anyone about C.P.’s claim. The best source of information (other than the file entries themselves, one supposes) were therefore denied Ms. Edizel. I can understand, then, her inability to answer some (perhaps many) questions, but on the whole I am not satisfied that she met her obligation to inform herself as much as reasonably possible in advance of her examination. As a consequence, Rule 7-2(22) applies:
In order to comply with subrule (18) or (19), a person being examined for discovery may be required to inform himself or herself and the examination may be adjourned for that purpose.
[22]         The combination, then, of overly-frequent interventions, inappropriate objections, and an under-prepared witness requires that Ms. Edizel be further examined. I will not restrict that examination to outstanding requests. Moreover, her attendance for further examination in British Columbia will be at the expense of the defendant (subject, obviously, to any future rulings on costs). Ms. Hayman will be permitted a further four hours for examination as requested.

Court Criticizes Unilateral Discovery Scheduling Practices


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:
[14]         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.

[15]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.

[16]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.

[17]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.

[18]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.

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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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