Tag: Rule 7-2(8)

8 Year Old Too Young To Be Examined for Discovery

Written by admin on March 13, 2015. Posted in BCSC Civil Rule 7. 55 Comments on 8 Year Old Too Young To Be Examined for Discovery

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defense application to examine an 8 year plaintiff.
In today’s case (Dann-Mills v. Tessier) the Plaintiff was involved in a ‘serious motor vehicle accident’ when he was 17 months old. A lawsuit was brought on his behalf by his litigation guardian. The Defendants sought to examine the Plaintiff for discovery. The Court found that this would be inappropriate and dismissed the application. In doing so Mr. Justice Voith provided the following reasons:

[38] I question the possible utility or value of any examination for discovery of Jorin, particularly in light of some of the medical conclusions I have identified. It was this issue that I canvassed most fully with counsel for the applicant.

[39] It is generally understood that the central objects of an examination for discovery are:

i) to enable the examining party to know the case it must meet;

ii) to enable a party to procure admissions which will dispense with other formal proof of its case; and

iii) to procure admissions which will damage an adversary’s case.

See e.g. Frederick M. Irvine, ed., McLachlin & Taylor, British Columbia Practice, loose-leaf, 3^rd ed. (Markham: LexisNexis, 2006) at 7-178.

[40] The applicant and other defence counsel accepted that they had no desire to obtain any “admissions” from Jorin on discovery. Instead, the applicant said that the “primary reason” for Jorin’s intended discovery related to the first consideration I identified; that being, to enable the defence to know the case that it must meet.

[41] Respectfully, I struggle to see how this can be so. This is not a case where the defendants may be surprised by Jorin’s evidence at trial. Jorin will not be present at the trial. Instead, the whole of Jorin’s case will be established by expert evidence, of which the defendants will have ample notice, and through other witnesses. The defendants can examine Jorin’s father and his grandmother (Jorin’s litigation guardian). They can interview his teachers and his special-needs assistants. In earlier applications, it became clear that Jorin, who requires full-time supervision, has had a series of caregivers. These sources are likely to be far more fruitful and reliable than the examination for discovery of an infant who, there is reason to believe, without deciding that it is so, struggles with comprehension, attention and language difficulties.

[42] The last basis for an examination of Jorin that was raised by counsel for the applicant was a desire, in a sense, to see Jorin and how he functions. There is significant disparity in the existing medical opinions on Jorin’s functionality. I have referred to some of these differences earlier in these reasons. Other differences are apparent in the letters of Drs. Purtzki and Joschko, respectively. Counsel considers that some opportunity to see and interact with Jorin would potentially be helpful for settlement and other purposes.

[43] First, it would appear that a discovery of Jorin would only achieve this object for the single counsel who conducted the examination for discovery, and not for the teams of counsel who represent the various defendants in this action. I cannot imagine that the intention would be to conduct the examination in the presence of all counsel who are involved in these actions.

[44] Second, though I do not question counsel’s expressed goal, I consider that this object can be otherwise achieved. I suggested to counsel that Jorin might be videotaped, or that counsel might possibly view Jorin, at a medical examination, through a glass mirror. Though counsel for Jorin indicated he would not be opposed to such endeavours, I was also told by counsel for the defendants that the examining independent medical practitioners might object. Nevertheless, I consider that with some ingenuity there are far better means available to get a sense of Jorin and his functionality than a brief examination for discovery would yield.

[45] In all the circumstances, I do not consider that an examination for discovery of Jorin would be appropriate, and I am unprepared to allow that examination to take place.

Examination for Discovery Caselaw Update: Scope of Proper Questions

Written by admin on June 15, 2012. 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.