Tag: Rule 7-2(3)

Court Tells Lawyer to "Focus" Their Questioning Instead of Extending Discovery Time

The BC Supreme Court Rules, which used to be open ended with respect to examinations for discovery, now have time limits in place with the Court retaining discretion to extend these limits in appropriate circumstances.
Unreported reasons for judgement were recently released considering and denying such an application with the Court suggesting counsel “focus” their remaining time appropriately.
In the recent case (Ross v. Casimong) the Plaintiff was injured in a 2009  collision and sued for damages.  The claim was prosecuted in the usual course (outside of fast track) with the present Rules allowing 7 hours of discovery.  The Plaintiff was examined twice with approximately 44 minutes of the allotted 7 hours remaining.  Defence counsel brought an application seeking a further discovery and allowing up to two hours to finish the job.  The Court dismissed the application noting a focused discovery could canvass what was needed in the remaining time.  In dismissing the application Master Dick provided the following reasons:
Master Dick Reasons for Judgement

"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.

Translator's "Poor Performance" Gives Way to Further Examination for Discovery

The current BC Supreme Court Rules cap examinations for discovery in a conventional prosecution at 7 hours unless the Court otherwise orders.   Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing one circumstance when prolonging this cap was appropriate.
In the recent case (Dhami v. Bath) the Plaintiff attended 8 hours of discovery.  A translator was used who “did a poor job“.  The Court exercised its discretion to allow a further 2 hours of discovery and in doing so provided the following reasons:
[5]             This application must be determined on the evidence before the court. The only evidence with respect to the examination itself are the excerpts revealing the translator’s poor performance which objectively interfered with counsel’s ability to conduct the examination in an efficient manner. Put another way, I find that the translator’s conduct made it reasonably impractical to complete the examination for discovery in the time spent to date.
[6]             I am not persuaded that the examination of the plaintiff was concluded such that the defendant must meet the heavy onus suggested in Hogg v. Hansen, 2007 BCSC 958, for a second examination. The additional two hours is allowed to the defendant to complete the one and only examination.

ICBC Claims and Proper Objections to Examination For Discovery Questions

In one of the more in-depth judicial discussions of examinations for discovery in the context of a personal injury claims, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of proper objections at a Plaintiff’s examination.
In today’s case (Nwachukwu v. Ferreira) the Plaintiff was injured in a 2006 collision.  In the course of the lawsuit the Plaintiff attended three examinations for discovery.  The Plaintiff’s lawyer raised numerous objections during these and the discoveries were ultimately cut short.  The Defendant brought an application directing the Plaintiff to answer the questions which were objected to and further for permission to conduct a lengthier examination for discovery pursuant to Rule 7-2(2).
Mr. Justice Willcock granted the application finding there was “significant obstruction” at the previous discoveries.  In doing so the Court provided the following helpful comments about the scope of discovery and of common objections:

[32] The scope of examination for discovery has recently been canvassed by this court in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556; More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166; and Day v. Hume, 2009 BCSC 587.  In those cases, the court reiterated the following principles:  the language of Rule 7-2(18) is identical to the former Rule 27(22) and the scope of examination for discovery has remained unchanged and is very broad.  Rigid limitations rigidly applied can destroy the right to a proper examination for discovery.  Useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose.  An examination for discovery is in the nature of cross-examination.  Counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[33] The time limit established by Rule 7-2(2) 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.  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.  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.  Where intervention is appropriate, the proper conduct of counsel is to state the objection to the form of a question and the reasons for the objection, but it is not appropriate to make comments, suggestions or criticism.

Applicable Law

[34] Many of the specific objections in issue are addressed in an article by John Shields and Howard Shapray published in The Advocate, Vol. 68, pt. 5 (September 2010) at page 671, referred to by Mr. Markham-Zantvoort in argument.

(a) Relevance

[35] Counsel objects to many questions on the grounds that they are not relevant.  In addressing these objections, I proceed from the proposition that counsel should have broad discretion to frame appropriate questions for the examination of the plaintiff, respecting the principles described in the cases to which I have referred.

(b) Confusion

[36] Counsel objects to many questions on the grounds that he finds them confusing.  In Cominco Ltd. v. Westinghouse Canada Limited (1979), 11 B.C.L.R. 142 (C.A.), the Court of Appeal at para. 19 held:

If a question is difficult to answer, the witness can say so and can be cross-examined about the difficulty. It is for the witness, not counsel, to deal with that.  Difficulty in answering does not exclude a whole area. It excludes specific questions.  No area of fact is closed on the ground that to enter it would “open the floodgates”.

(c) Repetition

[37] Counsel objects to questions he considers repetitive.  As Shields and Shapray note, “asked and answered” is not an appropriate objection in Canada.  Madam Justice Boyd in Rec Holdings Co. v. Peat Marwick Thorne Holdings, [1995] B.C.J. No. 1964 (S.C.), held at para. 9:

It is trite law that an examination for discovery is in the nature of a cross-examination.  While there will be situations in which repeating the same allowable question over and over on cross-examination may amount to intimidation, the Court must be slow to interfere where that tactic is used relatively sparingly and particularly in circumstances in which there are good grounds for the cross-examiner’s belief the witness may be falsifying his evidence.

(d) Inadequate Foundation

[38] Shields and Shapray say there is no requirement that a foundation be laid for a question.  In Cominco, the court noted at para. 632:

The objection is that no foundation was laid for the questions.  That suggestion does not appear to have been made at the time and I think that, if one objects, one should say why.  Presuming that this objection can now be made, I merely say that I know of no requirement that a foundation be laid.  None was cited to us.  Those questions should have been answered by the witness without interruption by counsel.

(e) Compound Questions

[39] Counsel routinely objected to questions that he considered to be compounded questions.  Shields and Shapray say, properly in my view, that objection to the form of question should be used sparingly.

(f) Privelege

[40] Counsel objected, at the most recent examination, when the plaintiff was asked what he alleges or says in relation to the claim.  The plaintiff cannot be asked what counsel told him about his claim or how the case will be framed at trial.  He may not be asked how much he will say he has lost, if the answer requires disclosure of an opinion obtained by the solicitor.  Question 1152 on the examination for discovery seems to seek such information.

[41] The witness cannot be asked to disclose how the facts having assembled, weighed or analysed by counsel.  That is what was offensive in the general requests considered by the court inTriathlon Ltd. v. Kirkpatrick, 2006 BCSC 890.  The questions asked in that case were held to offend the description of the privilege afforded to the solicitor’s brief in Hodgkinson v. Simms(1988), 33 B.C.L.R. (2d) 129 (C.A.).  It was the manner of getting at the work product by asking what facts had been assembled by counsel or what facts would be relied upon, rather than by asking about specific facts, that was objectionable.  The manner in which facts have been marshalled is a question going to trial strategy.  It is for that reason that I expect that counsel have included in the book of authorities Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143, although no express reference was made to it in oral submissions.  In that case, questions were held to be objectionable because of what was being sought: conclusions reached by counsel, rather than the evidence of the witness.

[42] Questions that intrude upon privilege are generally objectionable.  That is expressly reflected in Rule 7-2(18).  Care should be taken to protect the solicitor/client relationship.

The Examination For Discovery Time Limit: When Multiple Cases are Tried Together


Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing the time limit for examinations for discovery when two actions are set for trial at the same time.  In short the Court held that the Rules permit up to 14 hours of Plaintiff examination in these circumstances without the need for a Court Order.
In last week’s case (Campbell v. McDougall) the Plaintiff was involved in two separate motor vehicle collisions.  She sued for damages in both actions.  In the course of the lawsuit the Plaintiff was examined for discovery which was discontinued after 3.5 hours due to the Plaintiff’s fatigue.  The discovery was reset and continued for a full day for a total of 10.5 hours of examination.
The Defendant wished to have 2.5 further hours of examination.    The Plaintiff opposed and a Court application was brought.  It appears the the parties worked out many of their differences prior to the hearing of the application but ultimately the Court ordered that the Plaintiff attend a further 2.5 hours.
In doing so Master Bouck provided the following comments with respect to the discovery ‘cap’ of 7 hours set out in Rule 7-2(2):





[32] In the end, the plaintiff could be required to undergo up to 14 hours of an examination under Rule 7-2 without the defence having to obtain leave of the court.

[33] In this case, the defence has chosen to have one counsel conduct an examination, but effectively with respect to both actions.

[34] There is a sound basis for requesting the “additional” examination time, particularly with respect to the plaintiff’s new employment status. While it seems unlikely that the court would grant leave to exceed the specified hour allotment simply when some new information comes to light, the plaintiff’s earning abilities and capacity forms a significant part of the overall claim. A very large monetary amount for that loss will probably be advanced. An additional 2½ hours (and still less than the allowable 14 hours) examination time is not out of proportion to the amount involved in this proceeding.





The New Rules of Court and Examinations for Discovery


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing the scope of permissible questions at examinations for discovery under the new Civil Rules.  In short, the Court noted that although the New Rules contain some changes with respect to the time permitted for discovery, precedents developed under the former rules remain good law with respect to permissible questions.  The court also addressed the factors that can be considered in extending an examination for discovery.
In today’s case (Kendall v. Sun Life Assurance Company) the Plaintiff had disability insurance with the Defendant.  The Plaintiff sued claiming the Defendant improperly denied her insurance benefits.  In the course of the lawsuit the Plaintiff examined a representative of Sun Life for discovery.  During the course of discovery Sun Life’s lawyer caused “so much disruption” with interfering objections that Plaintiff’s counsel terminated the examination prematurely and walked out.
The Plaintiff brought a motion compelling the representative to attend discovery again to complete the examination, to answer the questions that were objected to and to extend the time of discovery beyond the permitted 7 hours.  Madam Justice Griffin granted the motion and in doing so made the following comments about the scope of permissible discovery questions under the new rules:

[6]             Rule 7-2(18)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules of Court] sets out the scope of examination as follows:

(18)      Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, …

[7]             Despite a variety of substantive changes to the Rules of Court enacted effective July 1, 2010, the scope of examination for discovery has remained unchanged and is very broad….

[13]         While the scope of examination for discovery has not changed with the new Rules of Court brought into force on July 1, 2010, the length of examination for discovery is now limited to seven hours or any greater period to which the person to be examined consents: Rule 7-2(2).

[14]          The newly imposed time limit on discovery makes it all the more important that the courts enforce the principle that counsel for the examined party must not unduly interfere or intervene during the examination for discovery.  The time limit imposes a self-policing incentive on the examining counsel to be focused and to not waste time on questions that will not advance the purpose of investigating the case or obtaining admissions for use at trial.

[15]         While the time limit on examination for discovery creates an incentive on the examining party to be efficient, it unfortunately also creates a risk that counsel for the examinee will be inefficient by unduly objecting and interfering on the discovery, for the purpose of wasting the limited time available.  If that party is economically stronger than the examining party, it also can strategically increase the costs of litigation this way, by burdening the financially disadvantaged party with having to bring a court application to obtain a proper discovery.

[16]         The proper conduct of an examination for discovery within the spirit of the Rules thus relies on the professionalism of counsel for the party being examined.

[17]         As held by the Ontario Superior Court in Iroquois Falls Power Corp. v. Jacobs Canada Inc. (2006), 83 O.R. (3d) 438 at para. 4:

Improper interference by counsel in the other party’s discovery undermines the purposes of discovery, prolongs it, fosters professional mistrust and generally offends the overall purpose of the Rules….

[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. ..

[52] In summary, the majority of objections made were not valid. The objections were undue interference in the flow of the examination for discovery.  It may or may not be the case that some of the questions were worded awkwardly and may have been seeking evidence of marginal relevance.  The examining party who frames questions badly runs the risk that the evidence obtained will end up being of no value.  Nevertheless, considerable respect ought to be shown for the professional judgment of counsel for the examining party on how to best approach an examination for discovery.  It is not up to counsel for the party being examined to dictate the opposing side’s decisions on which relevant areas of questioning should be the focus of the discovery.  It is also not in accord with the object of proportionality to make it the function of the court to become involved in micro-managing examination for discovery questions.

In addition to the above this case is worth reviewing in full for the Court’s discussion of the many specific objections that were raised.  In particular, the Court held that it is permissible in lawsuits for denied insurance benefits to ask the insurer’s representative about their general practices.

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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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