Tag: Rule 7-2(23)

Discovery Continuation Distinct from a Further Examination

As previously discussed, the law sets a heavy burden when a party seeks a second examination for discovery in a lawsuit in the BC Supreme Court.  There is a distinction, however, between a second discovery and a continuation of an incomplete one.  This distinction was discussed in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Li v. Oneil) the Plaintiff was examined for discovery at which various requests for further information were made.  When the Defendant sought to schedule a continuation of the discovery the Plaintiff opposed arguing the heavy burden for a further discovery was not met.  Master Muir granted the application noting the distinction between concluding an incomplete discovery based on outstanding requests and a genuine further examination.  The Court provided the following reasons:
[11]         The application before me, despite being framed as an application for a further discovery, was in reality an application that the examination of the plaintiff continue, both in accordance with R. 7-2(22) and generally, based on production of new material such as the list of special damages, medical records and employment records. In support, he relies on the decisions in Cowan v. Davies, 2008 BCSC 1239, and Dhami v. Bath, 2012 BCSC 2077…
[15]         I am of the view that the examination for discovery was adjourned as contemplated by these rules. Thus, the defendant is entitled to continue its examination for discovery regarding questions left on the record and I am of the view that logically extends to questions based on documents requested at the discovery and subsequently produced.
[16]         As the examination for discovery was not concluded, the heavy onus required to justify a further discovery referred to in Sutherland v. Lucas is not engaged. Given the extensive document production since the examination for discovery was conducted, I am also of the view that the defendant is entitled to continue its examination for discovery based on the new material, whether or not it was produced in accordance with a request left on the record.
[17]         If this was an application for a second examination for discovery I would come to a similar conclusion.
[18]         On a review of the listing of documents produced by the plaintiff since her examination for discovery as set out in the defendant’s notice of application, it is clear that many are documents that could prove or disprove a material fact and that they were in existence prior to her examination for discovery and as such required to be produced under rules 7-1(1) and 7-1(9).
[19]         The defendant submits that is sufficient to constitute a failure to make full and frank disclosure as contemplated in Sutherland v. Lucas and is such as to warrant a second discovery.
[20]         I agree. In my view it does not behoove a party to fail to make complete document disclosure prior to an examination for discovery and then to take the position that the examination cannot be continued when proper disclosure is made.
[21]         Thus, in the circumstances of this case I am satisfied that the defendant did not conclude its discovery and thus the heavy onus referred to in Sutherland v. Lucas does not apply. The defendant is entitled to continue its examination for discovery on the new matters, but is not entitled to examine on matters covered on the first day of examination for discovery.

"Silence Does Not Mean Consent" – Examination for Discovery Caselaw Update


 
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:
[32]         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.
[33]         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).
[34]         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.
[35]         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].
[36]         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.
 

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.

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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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