Tag: examination for discovery
The Rules of Civil Procedure govern examinations for discovery. Silent though, is when a non-party will be permitted to attend an examination for discovery and assist counsel. The answer can be found in case law.
An examination for discovery is not a public hearing, and as such non-parties cannot simply show up like they can at court. Instead, the party seeking the non-party’s attendance and assistance must either get the consent of counsel or permission from the court.
Master Dash in Poulton v. A&P Properties Ltd., set out the following governing principles:
- since a cross-examination on an affidavit is not a public hearing, a non-party may attend to assist a party only on the consent of the other side or on the order of the court;
- the onus is on the party seeking such an order to prove entitlement to it;
- the non-party should not be a witness at the subsequent trial;
- the attendance of the non-party must not disrupt the examination process;
- the non-party must not take the role of witness or assist the witness is answering questions; and
- a court in exercising its jurisdiction as to whether to allow the presence of a non-party must do so having regard to both substantive fairness to the parties and the appearance of fairness.
While every case will turn on the specific facts, it appears that generally speaking experts may attend to assist with technical and complex evidence (although they cannot later be an expert witness at trial), as well as a resource person or expert assistant who is familiar with a file in a document-intensive case.
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In D. Crupi & Sons Limited v. Travelers Guarantee Company of Canada et. al. the Ontario Superior Court of Justice referred to proportionality in discovery. The Court considered that, while the former case law says that the Rules provide for questions "relating to any matter in issue", the new Rule 29.2.03 amendment to "relevant to any matter in issue" suggests that the scope of examinations for discovery has been narrowed.
The Court stated: "In determining the issues on this motion I have applied the relevance test set out in Rule 31.06. I am also mindful of the proportionality considerations set out in Rule 29.2.03. The general principles regarding the scope of discovery are set out in Ontario v. Rothmans Inc.,  O.J. No. 1896 (S.C.J.)…" This case included among its principles:
- The scope of the discovery is defined by the pleadings; discovery questions must be relevant to the issues as defined by the pleadings;
- The examining party may not go beyond the pleadings in an effort to find a claim or defence that has not been pleaded (i.e. "fishing expedition");
- The extent of discovery is not unlimited, and in controlling its process and to avoid discovery from being oppressive and uncontrollable, the court may keep discovery within reasonable and efficient bounds.
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When can someone who is not a party to the litigation be examined? The Court may grant leave to examine for discovery any person who there is reason to believe has information relevant to a material issue in the action, other than an expert engaged by or on behalf of a party in preparation for contemplated or pending litigation.
Pursuant to Rule 31.10 of the Rules of Civil Procedure, such an order can be made if the Court is satisfied that:
a) the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
b) it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
c) the examination will not,
i. unduly delay the commencement of the trial of the action,
ii. entail unreasonable expense for other parties, or
iii. result in unfairness to the person the moving party seeks to examine.
In Ryndych v. Hamurak, 1999 Carswellont 4061,  O.J. No. 4718, Molloy J. allowed the examination of the minister who performed a marriage ceremony between the defendant and the deceased, who died intestate. The plaintiffs had attempted to interview the minister but she refused to answer questions. The validity of the marriage was central to the case and it was very likely that the minister had information relevant to the issues in this action that was not available from any party. The Court commented that it would be unfair to require the plaintiffs to go to trial without having the opportunity to examine the minister who officiated at the wedding.
Further, the Court found that it was not necessary for the plaintiffs to serve their notice of motion on the non-party they sought to examine. The intention of the Rules was not to require service of the notice of motion on the non-party. The position of the non-party was protected under the Rules because a person affected by an order obtained without notice was entitled to bring a motion to have the order set aside. There was also no requirement that plaintiffs examine the defendant prior to examining the non-party.
Sharon Davis – Click here for more information on Sharon Davis.