Category: Adverse Party Limitation

Court Denies Use of Discovery Transcripts Of Third Party Against Defendant

In the context of ICBC injury claims, the principle of adverse party limitation stands for the proposition that transcripts from the Examination for Discovery of a party can only be used against that party, and not against any other Defendants or Third Parties in the same action.


In Liversidge v. Wang, the issue for the Court to decide was whether or not transcripts from the Examination for Discovery of a Third Party could be used by the Plaintiff against the original Defendant at a summary trial application. After a consideration of the relevant rules and authorities, the Court held that the transcripts from the Examination for Discovery of the Third Party could not be used by the Plaintiff.


[10]         The admissibility of the third party’s discovery evidence is subject to two qualifications. First, assuming the plaintiffs are seeking to tender the evidence against the third party, that evidence is only admissible if the third party is “adverse in interest” to the plaintiff. Second, the discovery evidence is only admissible against the Third Party.


[14]         Under Rule 7-2(1), “a party to an action must make himself or herself available for examination for discovery by parties of record to the action… who are adverse in interest to the parties subject to the examination”. The Plaintiffs did not commence an action against the Third Party so as to make the interest the Third Party adverse to the interest of the Plaintiffs. Here, the Plaintiffs did not have the right to examine the Third Party for discovery. Despite the fact the Third Party consented to being discovered by the Plaintiffs, that consent does not then make the evidence that arises from that discovery available for use by the Plaintiffs against the Defendants.


[15]         The evidence provided at the Examination for Discovery of a representative of the Third Party cannot be used on this Summary Trial Application to assist the Plaintiffs in advancing the claim that they make against the Defendants.