Tag: Rule 7-2(17)

"There Is No (Discovery) Continuation As of Right Once a Matter is Removed From Fast Track"

Unreported reasons by the BC Supreme Court, Vancouver Registry, were recently shared with me finding that there is no right for examination for discovery continuation once a matter is removed from fast track prosecution.
In the recent case (Nordin v. Wong) the Plaintiff sued for damages for injuries and her claim was initially prosecuted under Rule 15.  She underwent examinations for discovery which was limited to the two hour cap under the fast track rule.
The case was removed from Rule 15 and the Defendant sought a further discovery under the greater timelines allowed.  In dismissing the application and finding there was “no continuation as of right” when a matter is removed from fast track Master Scarth provided the following reasons:
[4]  To the extent that this is an application for a continuation of the examination for discovery which took place in May of 2014, I am satisfied that it should be dismissed…
[5]  Counsel conducting the discovery stated it to be concluded.  Responses have been provided to the outstanding document requests, and the defendant here concedes that nothing arises fro the material which was so provided.   Further, there is no continuation as of right once a matter is removed from fast track…No conditions were placed on the removal of the action from fast track, apparently it not being in the contemplation of the defendant at the tine that they might require a further discovery.
[6] In my view, therefore, the fact that Rule 7-2(2) provides for seven hours of discovery does not assist the defendant here.  
 

7 Hour Examination For Discovery Cap Does Not Permit Discovery Splitting


Important reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, further clarifying the examination for discovery limit in the new Rules of Court.  In short the Court held that notwithstanding the time limit, generally only one examination for discovery is permitted.
In today’s case (Humphrey v. McDonald) the Plaintiff alleged injury following a collision.  In the course of the lawsuit the Plaintiff attended an examination for discovery.  It did not exceed the 7 hour cap set out in Rule 7-2(2).  Defence counsel brought an application seeking further discovery.  The Plaintiff opposed.  Madam Justice Gray dismissed the application finding that generally only one discovery is permitted.  The Court provided the following useful reasons:

[8] Defence counsel responds that it is implied that examinations should not be scheduled if it was abusive, but apart from that, a party can schedule multiple examinations for up to seven hours in total.

[9] In my view, the use of the plural “examinations for discovery” has to be read in the context of the entire sub-rule. It makes reference to examinations under other sub-rules, which relate to re-examination in subsection (17), in subsection (22) to informing himself or herself and it being adjourned for that purpose, and subsection (24) continuing an examination for discovery following receiving a letter.

[10] In my view, the sub-rule does not suggest that there should be more than one examination for discovery of a party. A party should be able to know whether they are finished with examinations for discovery or whether more are pending.

[11] I do not accept the interpretation of the sub-rule advanced by defence counsel. Since defence counsel has effectively conceded that it has had one examination for discovery of the plaintiff, the defence application to have a further examination for discovery of the plaintiff is dismissed.

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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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