Examination for Discovery: Evidence Prior to Trial

In Supreme Court actions in British Columbia, including personal injury lawsuits, the rules of civil litigation require that the parties attend an examination for discovery prior to trial. An examination for discovery is an opportunity for the opposing counsel to examine a party on matters relevant to the litigation. The starting point for defining the matters that are relevant to the litigation are the pleadings. Generally, questions that are posed by an opposing counsel must be answered unless your own counsel objects to the line of questioning. Where a genuine dispute arises from objections to a line of questioning, the parties may apply to the courts to resolve the dispute, which occurred in today's case, Thomson v A.R. Thomson Group, 2016 BCSC 2268.

In Thomson, a case where the plaintiff was seeking to have her partnership in the defendant reinstated, the defendant appealed an order from chambers, wherein the court ordered that a representative of the defendant must answer questions relating to the nature of business relationships between the family members involved in the partnership. As noted at paragraph 3, "the questions related to the nature of the relationships between the partners: whether those relationships had become strained; whether the managing partner... had in the course of the partnership had been falling out with any of his partners; whether since the creation of the partnership any partners had in his view done anything that had seriously damaged their relationship with their siblings; whether any of the partners since the formation of the partnership had refused to communicate with other partners...". In upholding Master Scarth's decision at chambers, Mr. Justice Greyell illustrated the way in which pleadings are analyzed in determining the scope of questioning at an examination for discovery:

[8]            In November 2009, Mr. Thomson made what is alleged to be an agreement with the plaintiff that in exchange for her cooperation in moving the company from the partnership, she would be reinstated as an equity partner when the litigation with the husband was resolved. The alleged agreement is the subject of the underlying litigation.
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[10]        In its response to the notice of civil claim the defendant denies that the plaintiff was told by Mr. Thomson the defendant would restore her to a 15% interest in the partnership. In other words, the defendant denies the alleged agreement.

[11]        Further in addition to a number of other defences raised, the defendant says at paragraphs 32 to 34 of its response to civil claim::

32.       The relationship between the plaintiff, her parents and siblings was seriously damaged when her siblings discovered in September 2012, that the plaintiff was writing a blog in which she cast them, to their great embarrassment, in a false, misleading, and pejorative manner.

33.       Since that time, the relationship between the plaintiff, her parents and siblings has continued to deteriorate such that, at the present time, the plaintiff refuses to communicate with her parents except by email and does not communicate with her other siblings in any manner except for [one]…

34.       As a result of her actions the plaintiff has caused her father, mother and siblings to be justifiable concerned that if she was permitted to purchase an interest in the defendant, she would be disruptive and harmful to the business of the defendant.

[12]        The plaintiff did not file a reply to the response to civil claim and as such the issues raised by the defendant in that response are presumed to be at issue in the matter at large. The plaintiff has not specifically denied the defendant's allegations. See Certus Strategies (British Columbia) Corporation et al. v. Insurance Corporation of British Columbia, 2005 BCSC 608.

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[14]        Rule 7‑2(18) of the Supreme Court Civil Rules provides that a person being examined on an examination for discovery must answer any question relating to a matter in question in the action. It is well established that the permissible scope of questions asked during an examination for discovery must relate to a matter in the action as defined by the pleadings, Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556, at paragraph 8.

[15]        The scope of allowable questions is a broad one, Cominco Ltd. v. Westinghouse Canada Limited, [1979] B.C.J. No. 1963.

[16]        ...It is clear to me from a review of both the transcript and her oral reasons that Master Scarth was alive to the legal principles she was to apply.

[17]        At page 18 of the transcript, line 28, during the course of her discussion with counsel she said this:

So the question which then arises is what kind of ‑‑ what is the norm for this family?  What is the ‑‑ what has this family tolerated in the way of disruptive behaviour in the past which makes that position untenable?  And that is, it seems to me, where your friend's questions were going. So in other words, if on cross‑examination at trial Mr. Coles wanted to ask questions about the kind of sibling rivalry or interpersonal relationships which had happened in the past in this, it seems to me that that would be something that would be appropriate. And therefore it seems to me that it is appropriate on discovery because of the scope of discovery.

[18]        At page 19 she said this:

Well, I am not sure that the issue of probative value comes into it. The question is whether it is relevant on the broad test of relevance that is applied to questions on discovery. So I think what you are saying is only her relationship with the family is relevant on the pleadings.

MS. PIERCY:  Yes.

THE COURT:  And it seems to me having reviewed the materials over the break and reviewed the discovery questions that that is too narrow a view of what is appropriate on discovery.

[19]        In her oral reasons Master Scarth at paragraph 2 outlined the nature of the action. At paragraph 3 she outlined the claims set out in the amended notice of civil claim. At paragraph 5 she said:

I have been given the appendix with the list of questions that are objected to. I have already stated in the course of submissions that in my view the defendant's position that the plaintiff's behaviour was too disruptive for the family business makes the question of what is the norm for the family business relevant. That is, what behaviour is tolerated or considered not to affect the business of the company and as a result questions with respect to the relationship of other partners are relevant.

[20]        She then went on to review each of the questions attached to Exhibit A, finding most to be relevant, qualifying others and finding two to be overly broad or irrelevant.

[21]        I am in agree with Master Scarth's reasoning that the nature of the business relationships between the family members of ARTG are relevant to the defendant's ultimate position that reinstating the plaintiff to the family business, that is the granting of her claim for specific performance, would be disruptive and harmful to the defendant's business.

[22]        The defendant's pleadings raise an issue as to what is the nature of the relationship between the plaintiff and her siblings. I refer specifically to paragraphs 32 and 33 of the amended response. In my view the defendant's pleadings also give rise to whether the defendant's decision not to reinstate the plaintiff to the partnership is a bona fide one and to its claim that specific performance of the agreement should not be granted should the agreement be found to be enforceable.

[23]        Accordingly, I dismiss the appeal.

As illustrated, it is important to ensure the questions in an examination for discovery are proper and relevant. This is an important role of any counsel representing a plaintiff in a Supreme Court action, including personal injury actions. This issue also illustrates the importance of being represented in your personal injury action. For more information about how an examination for discovery may become important of your claim, as well as the general benefits of representation for your personal injury litigation, please contact Jasroop or James.

 

 

 

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