Exploring common discovery refusals: What’s proper, what’s not?

Understanding relevant case law means fewer disputes and less cost, delay

Exploring common discovery refusals: What’s proper, what’s not?

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Discoveries are a large part of a personal injury lawyer’s job. They are also the source of many motions that add cost and delay for both sides. A high proportion of these motions stem from improper refusals and/or counsel’s vague answers to questions.

One of those vague answers is a pet peeve for Deanna Gilbert, partner at Thomson Rogers, and is also a phrase that she guarantees every lawyer has either heard or said at least once during their career.

“When you ask a question and the other side says: ‘I’ll comply with the rules,’ that really frustrates me,” Gilbert says. “With many questions, there is no rule you can point to that directly responds to the specific question asked, and even if there was, the reality is that we don’t all agree upon the interpretation of the rules. If we did there wouldn’t be so many disputes.”

While rule 31.06 of the Rules of Civil Procedure offers some guidance regarding the scope of discovery, and its four subheadings are explored more thoroughly in Ontario v. Rothmans Inc., the true distinction between what you can and can’t ask during discoveries has been fleshed out over the years through case law. Keeping up-to-date with decisions that address what’s proper and what’s not when it comes to discoveries is critical for personal injury lawyers, Gilbert notes, and there are helpful cases that would help eliminate some of the improper refusals that eat up the time, money and effort of all parties.

One example is Aviva Canada Inc. v. Lyons Auto Body Ltd. In the decision, the judge said — and Gilbert wholly agrees — that “the too often used response of counsel when dealing with procedural matters to say: ‘we will comply with the Rules’ is fraught with ambiguity.” The judge went on to commend the lawyer on the receiving end of that comment for pressing opposing counsel to clarify what that counsel understood the phrase to actually mean.

Another common refusal is when you ask opposing counsel to summarize the contents of a document in Schedule B of an Affidavit of Documents, and the request is refused on the basis of privilege.

“There’s a difference — and a lot of people don’t appreciate this — between documentary disclosure obligations, governed by Rule 30, and informational disclosure obligations, governed by Rule 31,” Gilbert says.

Reis v. CIBC Mortgages Inc. clarifies that the parties don’t have to disclose the document itself, but the information contained in the document is not protected. In personal injury cases, the issue comes up a lot as it relates to witness statements and surveillance.

On the issue of Schedule B surveillance, specifically, there’s a leading case with which Gilbert always prefaces her requests for informational disclosure. She asks: “In keeping with the Ontario Court of Appeal’s decision in Iannarella v. Corbett, will you provide me with the dates, times, locations, and nature of the observations?” That decision, more than any rule, particularizes what informational disclosure is required and emphasizes the importance of full informational disclosure, even if the physical surveillance report or video itself, is not produced.

“Our whole system of justice is based on the fact that the parties should come to the table having an idea of the evidence — you’re not supposed to ambush people,” Gilbert notes.

Some defence lawyers, Gilbert says, try to refuse to provide the particulars of surveillance when asked during the defendant’s discovery, offering to disclose that information only after the plaintiff has been examined. The refusal is based on a strategy to try get the plaintiff to say something under oath that it inconsistent with what the surveillance shows — but defence lawyers don’t get to have that luxury, Gilbert says. 

In Zdenko v. Sutherland, the court ruled the plaintiff is entitled to that disclosure when the defendant is examined or would have been examined, if a defendant fails to show up. If you’re that concerned about the timing of the surveillance disclosure, whatever side you’re on, Gilbert says the best strategy is to comply with the Rules in order to preserve your right to conduct the first examination.

Gilbert notes that one exception to the informational disclosure rule applies to Schedule B statements that defendant drivers gave to their insurers. Referring to the decisions of Sangaralingam v. Sinnathurai and Knox v. Applebaum Holdings Ltd. Et al., Gilbert states that when the defendant is able to give evidence at an examination for discovery, then the case law says that the defendant need not disclose what he told his insurer in the statement. In circumstances where the defendant fails to be examined or states that previous recollections are now lost, however, Gilbert says that there may be a way to get around this exception.

A final common refusal centres around the misconception that hypothetical questions aren’t proper questions, but Gilbert says that this is not the case for all hypothetical questions. The Estate of Maryam Asharzadeh v. Amin provides a “helpful summary on the yeas and nays of hypothetical questions at discovery,” Gilbert notes, for instance, that if you’re going to ask a hypothetical it must be within the knowledge or expertise of the witness; it still has to pass the relevance test; it should be prefaced with “could” rather than “would”; it should not go to answering the ultimate legal issue; and — this is an important one, Gilbert adds — there has to be some factual foundation in the evidence.

At the end of the day, the lesson to be learned from commonly used but otherwise improper refusals can be summed up by saying that “to serve our clients as best we can, we all must be familiar with not just the rules but also the case law,” Gilbert says. “It increases efficiency and the fewer disputes we have, the better off we all are.”

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