In Higginson v. Kish, the Plaintiff was injured in a motor vehicle accident after striking the rear of a truck that pulled into his lane, leaving the Plaintiff no time to avoid the collision. The Plaintiff brought an ICBC claim for pain and suffering, as well as other forms of damages. At the Examination for Discovery of the Defendant, three questions that were asked by Plaintiff’s counsel were objected to by ICBC’S lawyer. Counsel for the Plaintiff brought an application to compel answers to these questions, only succeeding on one of the three questions. The Court commented that :

 

[5] It seems to me that while one of the questions, the first one, “Do you have any possible explanation why you wouldn’t have seen Mr. Higginson’s vehicle approaching in the left lane” may have been inelegantly phrased. What it was getting at or should have been getting at is, “Was there anything obscuring your ability to see to the rear, as Mr. Higginson approached?”

 

[6] That does not call upon the witness to speculate, it seems to me, if the question is properly phrased, nor does it call upon the defendant to speculate. It is relevant to the issues, that is was there anything preventing the witness from seeing to his rear. That question, together with any subsidiary questions, ought to be answered.

 

[7] Question 295, which was “Will you agree with me that it would have been more reasonable to have approached highway speed before changing lanes,” does not require an answer, in my view. It is not an appropriate question to ask a witness. What that really asks the witness to do is to make the judge’s decision for the judge, and that is answer questions that involve matters of law, that is whether the activities or actions of the defendant were reasonable. I will not order the witness to answer that question or anything relating to that question.

 

[8] Question 310: “And you were aware that prior to changing lanes, that you could expect vehicles approaching at highway speed, 80 kilometres an hour?” That expectation is a perfectly legitimate and reasonable thing to explore on examinations for discovery. The knowledge of the defendant as to the speed at which traffic was or might reasonably be expected to be travelling at the time of the accident, is permissible as a topic for exploration on discovery.

In Henneberry v. Humber, the matter had been set down for fast track litigation. As such, the Examination for Discovery was limited to two hours. Counsel for the defense used up the two hours, then requested a further Examination for Discovery, to which counsel for the Plaintiff refused, leading to a court application. Counsel for the defense argued that the matter was a complicated one, that liability was in issue, and that the Plaintiff refused to sign a Notice to Admit certain facts, which would have reduced the length of the Examination for Discovery. Counsel for the Plaintiff pointed out several instances in the transcript where opposing counsel squandered opportunities to take advantage of the time limit. The Court agreed with counsel for the Plaintiff, commenting that counsel for the defense had pursued “unproductive trains of inquiry”.

 

[5] Two of the leading members of our court, if I could say that, in civil matters, Madam Justice Susan Griffin and Mr. Justice N. Smith, have both written judgments on these new rules. In one case, the case of More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, Mr. Justice N. Smith, says this at paras. 12-13:

 

[12] The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism. Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents. Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.

 

[13] As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14. At the same time, the existence of the time limit 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. This interplay was described in Kendall at para. 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.

 

[6] In this particular case, counsel for the plaintiff has taken me to the transcript and I am satisfied that there was far too much time spent pursuing unproductive trains of inquiry. As a result, the two-hour limitation passed by without counsel for the defendant being able to deal with all the issues with which they wanted to deal.

In Brown v. Dhariwal, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for damages for pain and suffering, income loss, diminished earning capacity, and other forms of damages. Liability was admitted by the Defendant. The matter was originally brought as a fast track action, with an Examination for Discovery of less than two hours having taken place. The matter was then removed from the fast track route, however counsel for the Plaintiff and the Defendant could not agree on how long a subsequent Examination for Discovery should be. Whether there should even be another Examination for Discovery was another issue. The Court would eventually rule that there should be seven hours of total Discovery time, inclusive of the time for the first Examination for Discovery.

 

[20] The question then becomes did the Master err in concluding the defendants did not have a right to a further seven hours of discovery in the circumstances? In my view he did not and decided this aspect of the application correctly. The Rules of Court do not specify what happens when a case is removed from fast track. Any reconvening or continuation of the first discovery, however, would have to occur pursuant to Rule 7-2. There is no dispute that both Rules 7-2 and 15-1 provide a party to an action with a right to one examination for discovery of a party adverse in interest.

[21] The import of the defendants’ argument that they are entitled to seven hours as a right, is that in every case where an action moves from fast track to regular and discoveries have been adjourned as opposed to finished, parties are then entitled to an additional seven hours of discovery.

[22] Bearing in mind the object of the Rules and the implications of such an interpretation for parties who begin under the regular track, I cannot agree with this interpretation. What the defendants are entitled to is a continuation of the adjourned discovery without the constraint of the two-hour time limit that applies in the fast track.

In Li v. Oneil and ICBC, the Plaintiff was injured in a motor vehicle accident, and consequently brought an ICBC claim for pain and suffering, as well as other forms of damages. At an interlocutory court application, ICBC’S sought the production of various documentation of the Plaintiff‘s, and also sought a further Examination for Discovery. There had been an original Examination for Discovery, wherein ICBC’S lawyer had made several requests for further documentation. However, the issue of whether or not there would be a further Examination for Discovery was not addressed at the end of the original one. In the circumstances of this case, the Court allowed the further Examination for Discovery, nothing that there is a distinction to be drawn between an actual continuation of an Examination for Discovery, and one in which is based on outstanding requests.

 

[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.

In CP v. RBC Life Insurance Company, the Plaintiff brought an action against the Defendant for disability insurance coverage. Throughout the course of the Examination for Discovery, counsel for the Defendant made numerous interruptions and objections, thereby taking up a good portion of the maximum allotted 7 hours for the Examination for Discovery. Although there is a heavy onus on counsel to show the need for a further Discovery, in the circumstances of this case, the Court permitted an additional 4 hours of Discovery, as a result of counsel’s conduct, as well as an unprepared witness.

[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.

[16] The law, in my view, has developed to encourage, on the one hand, a wide range of questioning on an examination for discovery and to limit, on the other hand, objections and interventions by the examinee’s counsel. In Kendall v. Sun Life Assurance Co. of Canada, for example, Griffin J. said at para. 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

[17] One could review, seriatim, the interventions and objections. One could take each question individually and order Ms. Edizel to either answer or not. I have no intention of doing that. I subscribe, instead, to N. Smith J.’s approach in More Marine Ltd. v. Shearwater marine Ltd. at para. 14:

I do not intend to individually review and rule on each question that was objected to. It is apparent on reading the transcript that many of Mr. Morris’ questions could have been more appropriately phrased, but many of the objections are examples of what the court in Cominco called at 151 “rigid limitations rigidly applied.” It is also apparent that objections often gave rise to arguments between Mr. Morris and counsel that occupied a significant portion of the time.

Save for the reference to “…more appropriately phrased…” questions, I agree entirely with that characterization of this particular examination; rigid limitations were rigidly applied in many objections. Ms. Carmichael frequently objected on the basis of relevance, protested that the questions were misleading or too general, or simply objected. In frequent instances it is clear that Ms. Edizel took the lead from Ms. Carmichael’s interventions and answered accordingly.

In Stanikzai v. Bola, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages. The Defendant, who never attended an Examination for Discovery prior to the trial, was found to be 75% responsible for the accident. Normally under such circumstances the Plaintiff would only be entitled to 75% of their post-offer costs, however in this instance the Court held that the Plaintiff would be entitled to their full post-offer costs, finding that the Defendant exhibited reprehensible conduct by failing to attend the Examination for Discovery.

 

[6]             Parties to civil litigation are required by R. 7-2(1) of the Supreme Court Civil Rules, to make themselves available for examinations for discovery. It is not something a litigant can choose to do or not do on the basis of her own convenience. If Ms. Bola was unable to attend the examination on the day it was set, her obligation was to notify her counsel and discuss alternate dates. Instead, she simply failed to show up.

 

[7]             I also find it difficult to believe that she had no knowledge of the false information her husband was apparently providing to defence counsel when a second discovery was requested. Ms. Bola showed a complete and unacceptable disregard for her duties under the law. I stress this was not the fault of defence counsel, who attempted to get her cooperation.

 

[8]             Counsel for the plaintiff was clearly left at a disadvantage in having to cross-examine Ms. Bola at trial without the benefit of discovery, but that likely had no effect on the result. My findings on both the defendant’s liability and the plaintiff’s contributory negligence were based primarily on the evidence of an independent witness. I also note that the problem could have been dealt with by an application to compel the defendant’s attendance at discovery immediately after her initial non-appearance.

 

[9]             Special costs are awarded when a party has been guilty of “reprehensible conduct”. That term includes conduct that is scandalous or outrageous, but also includes “milder forms of misconduct deserving of reproof or rebuke”: Garcia v Crestbrook Forest Industries Ltd, (1994) 9 BCLR (3d) 242 at para 17 (BCCA). The decision on whether to order special costs is “highly discretionary” and specific to the facts of the individual case: Li v Huang, 2007 BCSC1806 at para 3.

 

[10]         I find that the defendant’s refusal to appear at discovery meets the definition of “reprehensible conduct” and I would not hesitate to award special costs if I thought that conduct had affected the outcome of the trial. But, in the specific circumstances of this case, I find that there is another, more proportionate rebuke available.

 

[11]         Under normal circumstances the plaintiff, having been found 25 per cent responsible for the accident, would recover only 75 per cent of his costs. This arises from s. 3(1) of the Negligence Act, RSBC 1996, c 333:

3 (1) Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.

 

[12]         Although payment of costs in proportion to the degree of liability is the default rule, the court has discretion to depart from it. That departure must be for reasons connected with the case, with the principle consideration being whether application of the usual rule will result in an injustice: Moses v Kim, 2009 BCCA 82 at para 70.

 

[13]         In these circumstances, I find that the interest of justice can best be served by depriving the defendants of the reduction in costs that they would otherwise benefit from and I award the plaintiff the full costs of this action.

 

In Nwachukwu v Ferreira, the Plaintiff’s lawyer made numerous objections to the questions asked by the lawyer for ICBC at Examinations for Discovery, causing the Discovery to be stopped. The ICBC lawyer made a court application for an order compelling the Plaintiff to answer the questions. The Court allowed the application, and summarized the areas of law of proper questions and the breadth of a Discovery.

 

[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.

 

[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.

 

[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.

 

[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”.

[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.

[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.

 

[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.

 

[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 in Triathlon 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.

In Humphrey v McDonald, the Plaintiff was examined by the lawyer for ICBC, with the Discovery taking less than 7 hours, which is the limit for non- fast-track litigation matters. The ICBC lawyer then wished to have a further examination, however the Court refused to grant this.

 

[6]               Defence counsel says that proper interpretation of Rule 7-2(2) provides that a party can do at least two examinations for discovery of an adverse party and the real concern is that they do not exceed in duration seven hours. Defence counsel relies on the fact that the sub-rule refers to “examinations”, a plural word.

 

[7]               Plaintiff’s counsel is opposed, and says that if that were the interpretation of this sub-rule, that parties would be entitled to conduct one hour of an examination for discovery and then sometime later choose to do another hour. In other words, Plaintiff’s counsel argues that under this interpretation, a party could have multiple examinations for discovery until it adds up to seven hours.

 

[8]               Defence counsel responds that it is implied that examinations should not be scheduled if it was abusive, but apart from that, a party can schedule multiple examinations for up to seven hours in total.

 

[9]               In my view, the use of the plural “examinations for discovery” has to be read in the context of the entire sub-rule. It makes reference to examinations under other sub-rules, which relate to re-examination in subsection (17), in subsection (22) to informing himself or herself and it being adjourned for that purpose, and subsection (24) continuing an examination for discovery following receiving a letter.

 

[10]           In my view, the sub-rule does not suggest that there should be more than one examination for discovery of a party. A party should be able to know whether they are finished with examinations for discovery or whether more are pending.

 

[11]           I do not accept the interpretation of the sub-rule advanced by defence counsel. Since defence counsel has effectively conceded that it has had one examination for discovery of the plaintiff, the defence application to have a further examination for discovery of the plaintiff is dismissed.

An Examination for Discovery will occur after the Plaintiff has initiated legal proceedings. The process involves the Plaintiff, the Plaintiff’s lawyer, ICBC’S lawyer, and sometimes an ICBC adjuster, meeting at an office boardroom. The ICBC lawyer will ask the Plaintiff questions about the accident, their injuries, the rehabilitative steps they have taken, any loss of income that is being claimed, etc …, and may request further documentation in this regard. The questioning at an Examination for Discovery is quite broad. The Plaintiff’s lawyer is there to ensure that no improper questions are asked of the Plaintiff. The purpose of the Examination for Discovery is for ICBC to gain a greater understanding of the Plaintiff’s injuries, and how they have affected the Plaintiff’s life. ICBC is also looking to see how credible of a person the Plaintiff is, and how well the Plaintiff would present in court, should the matter ever reach that stage. A court reporter is also present to record everything that is said, and the Plaintiff will be under oath, meaning that the Plaintiff must tell the truth when responding to questions.

 

Rule 7-2 of the British Columbia Supreme Court Civil Rules deals with Examinations for Discovery.

 

In More Marine Ltd. v. Shearwater Marine Ltd., the Court discussed in detail the scope of an Examination for Discovery under the new Supreme Court Rules, which became effective on July 1, 2010.

 

[3]             The scope of proper questioning on an examination for discovery is set out in Rule 7-2 (18) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]:

 

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, and

(b)        is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

 

[4]             The new Rules came into effect on July 1, 2010, but the language in rule 7-2 (18) is identical to the former rule 27 (22).  As Griffin J. said in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556 [Kendall] at para. 7 “the scope of examination for discovery has remained unchanged and is very broad.”  In Cominco Ltd. v. Westinghouse Can Ltd. (1979), 11 B.C.L.R. 142 (C.A.) [Cominco], an early and leading case under the former rule, the Court of Appeal said at 151 that “rigid limitations rigidly applied can destroy the right to a proper examination for discovery.”  The court in Cominco also adopted the following statement from Hopper v. Dunsmuir No. 2 (1903), 10 B.C.R. 23 (C.A.) at 29:

 

It is also obvious that useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose, and it is needless to labour the proposition that in many cases much preliminary skirmishing is necessary to make possible a successful assault upon the citadel, especially where the adversary is the chief repository of the information required.

 

[5]             In Day v. Hume, 2009 BCSC 587 this court said at para. 20:

 

The principles emerging from the authorities are clear. An examination for discovery is in the nature of cross-examination and 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.

 

[12]         The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.

 

[7]         Under the former rules, the duty to disclose documents and the duty to answer questions on oral examination were therefore controlled by the same test for relevance.  Under the new Rules, different tests apply, with the duty to answer questions on discovery being apparently broader than the duty to disclose documents. 

 

[13]          As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit 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. This interplay was described in Kendall at para. 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.

 

[14]         I do not intend to individually review and rule on each question that was objected to.  It is apparent on reading the transcript that many of Mr. Morris’ questions could have been more appropriately phrased, but many of the objections are examples of what the court in Cominco called at 151 “rigid limitations rigidly applied.”  It is also apparent that objections often gave rise to arguments between Mr. Morris and counsel that occupied a significant portion of the time.

 

[15]         Some of the questions objected to relate to general practices in the insurance industry or within the defendant insurance company.  I consider those questions to be proper and relevant for the same reason similar questions were found to be relevant in Kendall−they permit the plaintiff to probe into the issue of whether the defendants’ handling of the plaintiff’s claim was reasonable and fair.

 

[16]    There were also a number of questions objected to because they called for interpretation of the insurance policies at issue.  I agree that the questions were not properly stated in that they simply asked the witness to state the meaning of certain words in the policy or other document.  However, all of them can be easily restated (and may have been if a less obstructive approach had been taken) as questions asking how the provisions are normally applied in certain situations or how they were applied in relation to the plaintiff’s claims.

In Lewis v Lewis, after the Examination for Discovery of the Plaintiff was concluded, the Defendant wished to have a continuation. The Plaintiff opposed this, prompting defence counsel to bring an application, which the Court denied.

[6]         The plaintiff at an examination for discovery conducted in June of 2009, left open a continuation of the discovery, but it is clear from the affidavit material of Mr. Dinsley and of the discovery transcript itself that counsel the discovery open for the express purposes of obtaining an update of the plaintiff’s condition closer to trial. Surgery was scheduled after the discovery and the proposed continuation was to be limited to a “a few questions” pertaining to its aftermath.

 

[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.