Date: 20021119
Docket: T-2120-01
Neutral citation: 2002 FCT 2009
BETWEEN:
JOHN R. PINKNEY
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
HARGRAVE P.
[1] These reasons arise out of the Plaintiff's motion for oral examination of discover of more than one person, the grounds being that no one individual has first-hand knowledge of events that occurred on three different days.
[2] The counsel for the Defendant has advised the Plaintiff that the Defendant will select one Crown representative to be examined for discovery. That person will be an employee of the Correctional Services of Canada, who has either first-hand knowledge, or who will inform himself of the relevant facts.
CONSIDERATION
[3] Rule 237(2) provides that when the Crown is to be examined on discovery it is for the Attorney General of Canada to select a representative.
[4] Rule 235 limits discovery, except with leave of the Court, to discovery of an adverse party only once. Rule 237(3) provides that the Court may, on motion by the examining party, order some other representative of the Crown be examined for discovery. The relevant portions of the rules are as follows:
I shall also set out a predecessor rule to Rule 235, which was replaced in 1990, being Rule 465(19):
|
The Court may, for special reason in an exceptional case, in its discretion, order a further examination for discovery after a party or assignor has been examined for discovery under this Rule. [Emphasis added] |
|
La Cour pourra, pour des raisons spéciales, mais exceptionnellement, et dans sa discrétion, ordonner un autre examen préalable en vertu de la présente Règle. |
[5] I have set out the old rule for the purpose of comparison. Rule 465(19) required, before there might be a second discovery, that the case be an exceptional one and that there be a special reason. These requirements were dropped when the rules as to discovery were amended in 1990. The 1990 amendments are similar to the 1998 rules which are now in effect. Thus pre-1990 Federal Court cases must be used with care. Having said that I will first refer, as I did in Liebmann v. Canada (Minister of National Defence) (1996), 110 F.T.R. 284, to what is still the current general principle as to examination for discovery. This was set out by Mr Justice Strayer, as he was then, in Dillingham Construction Ltd. v. Standard Telefon OG Kabelfabrik A/S (1987), 11 F.T.R. 223 at 224:
| [4] First, the general principle in examination for discovery is that it should be as broad as possible, subject only to questions of relevance and a balancing of the costs versus the utility of obtaining information marginally relevant. This general principle reflects the desirability of defining and narrowing the issues and expediting the trial of an action. Secondly, an examining party is normally entitled to have questions answered orally and to ask supplementary questions in order to clarify the answers thus given. Thirdly, pursuant to rule 465(19) the court is entitled either to order further examination of the same representative of the opposite party already examined, or even another representative of that party. |
I will deal with the aspect of discovery of another representative by referring to both Federal Court and to British Columbia cases.
[6] To begin, Mr Justice Hugessen, as he now is, pointed out in Lubrizol Corporation v. Imperial Oil Ltd. (2000), 184 F.T.R. 102 (F.C.T.D.) that in a complex matter no one person can know all of the relevant facts: "one cannot expect that any one witness will be fully informed on every aspect of the case...", but went on to point out that the witness in question was informed on at least one aspect of the case and was in a position to obtain further information and furnish it to the other side (see page 103).
[7] Rule 241 places an obligation on a discovery witness to inform herself or himself, before the examination, by making enquiries of present or former officers, servants, agents or employees. While a witness is not bound to enquire where the effort, time involved, trouble, expense and difficulty of the enquiry outweighs the usefulness of any answer (see Hayden Manufacturing Co. Ltd. v. Canplas Industries Ltd. (1998), 173 F.T.R. 229 at 234 - 235, a discovery witness is required to use best efforts to obtain information from third parties (Crestbrook Forest Industries Ltd. v. Canada (Minister of National Revenue), [1993] 3 F.C. 251 at 265 - 266 (F.C.A.), leave to appeal refused (1993), 163 N.R. 320). I now turn to consideration of some useful British Columbia cases which deal with Rule 27(5)(c) providing for the examination for discovery of a second person, with leave of the court.
[8] In Morrison-Knudsen Company Inc. v. B.C. Hydro and Power Authority (1970), 75 W.W.R.757, the B.C. Court of Appeal considered whether an officer of a company ought to be sent back to fully inform himself, or whether it might be more convenient and practical to have someone else. The Court of Appeal used the analogy of a case involving a motor vehicle accident:
| Cases may arise in which, rather than sending an officer of the company back to fully inform himself by inquiry from other agents or officers of the company about the subject of his examination, another officer should be examined. It would be desirable to do that, I should think, in the case of an automobile accident where a bus driver was charged with negligence and it was suggested that the managing director of the company should go back to the bus driver and get a report from the bus driver of what happened and then give that through discovery. There I think the most convenient way and practical way would be to have the bus driver examined.
There may be other cases where it is more practical to ask an officer being examined to go back and inform himself upon the subject of his examination.
(Page 760) |
In Morrison-Knudsen the Chief Justice did suggest a pragmatic alternative to second-hand evidence, being production for discovery the person actually involved. While it is premature to decide that point, the Crown's witness having not yet been examined, both sides should keep the suggestion of the chief Justice, in Morrison-Knudsen, in mind.
[9] Mr Pinkney, in the grounds referred to in his Notice of Motion, seeks the additional discovery witnesses at least in part to demonstrate how an alleged obstruction to justice occurred. Mr Pinkney will have to keep in mind that discovery is not a fishing expedition. Here refer to the decision of Mr Justice Bouck, of the B.C. Supreme Court who considered various authorities as to the examination of a second witness for discovery in Aintree Investments Ltd. v. West Vancouver (1977), 5 B.C.L.R. 216. Among the factors that he considered, bearing on a second witness, were expense and whether a subsequent discovery should be restricted where its purpose seemed predominantly that of a fishing expedition.
[10] This concept, that discovery is to obtain facts, relevant to pleadings, and that the discovery is not to be degenerated into a fishing expedition, through the examination of a number of witnesses, is a point made by Mr Justice Teitelbaum in Newfoundland Processing Ltd. v. The "South Angela" (1988), 24 F.T.R. 116 at 120.
[11] In Bland v. International Sealand Shipping Service Ltd. (1979), 18 B.C.L.R. 40 (B.C.S.C.) Mr. Justice Bouck denied an application for the examination of a second officer of the defendant company. Relying upon Ball v. B.C. Electric Co. Ltd. (1951), 4 W.W.R. (N.S.) 478 (B.C.S.C.), he observed that the party wishing the second witness must show that the initial witness is incapable of giving the required evidence either through his own knowledge or by informing himself.
[12] In Lord v. Royal Columbian Hospital (1981), 43 B.C.L.R. 147 (B.C.C.A.) the court noted that the purpose of examination for discovery was not to provide an opportunity to examine all of the witnesses who might have relevant knowledge, but rather it was ". . . for counsel applying for the additional examination to satisfy the judge in chambers that the witness being examined for discovery on behalf of the adverse party cannot satisfactorily inform himself or herself about the subject of the examination for discovery." (p. 150).
[13] This concept that a second witness is not available until the first witness demonstrates that he or she cannot satisfactorily become informed, is one considered in Richter Gedeon Vegyészeti Gyar Rt v. Merck & Co. (1995), 185 N.R. 88 at 91. There the Federal Court of Appeal said that until the first witness had demonstrated, during the examination for discovery, that he or she was not an informed person, an examining party could not invoke the benefit of the Federal Court Rule which allow further discovery. In Richter Gedeon the Court of Appeal went on to make a point that is applicable here:
| Since the examinations for discovery in this case had not yet been held, the Motions Judge dismissed that part of the motion, but without prejudice to the appellants' right to renew the application in appropriate circumstances. No appeal is taken from this portion of the order.
(Page 91) |
The Court of Appeal here refers to what was, in its view, a premature motion for discovery of certain additional named persons, the discovery having not been commenced.
[14] As a guide to the parties and in anticipation of what might well transpire on discovery, I will set out the factors to be considered in applying for a second discovery witness and will touch upon the issue of whether a discovery ought to go through to a complete conclusion before the examining party is entitled to apply for a second witness.
[15] In Rogers v. Bank of Montreal (1986), 1 B.C.L.R. (2d) 132, Mr. Justice Macdonald of the B.C. Supreme Court considered an application for discovery of a second representative of the defendant bank. He noted that there was a difference of judicial opinion as to whether or not, as a condition precedent, the first examination must have been completed.
[16] My own view is that given the high cost of litigation an examining party ought to be able to apply for a second discovery, in effect the substitution of a witness, as soon as counsel feels he or she can make the case. I believe this view is borne out by the Chief Justice's comment in Richter Gedeon:
| Until the respondent's designates had demonstrated during the examination for discovery that they were not informed persons within the meaning of subsection 456(2) of the Rules, the appellants could not invoke to their benefit the provisions of subsection 456(4) of the Rules. (loc. cit.) |
I note that the Chief Justice uses the phrase "... during the examination for discovery" and this indicates to me that a discovery need not be concluded before applying for a second witness.
CONCLUSION
[17] This motion for multiple discoveries is premature, for no one has yet been examined for discovery. Thus Mr Pinkney is unable to show that the Crown's witness is incapable of giving the required evidence. Mr Pinkney will have to proceed with the discovery of a witness to be nominated by the Crown. At least initially Mr Pinkney will have to be satisfied that a discovery witness has an obligation to use best efforts to become informed. Only if and when Mr Pinkney feels that he can make a case for a second witness, should he make an application for a second discovery witness.
[18] Costs to the Defendant, in any event, in the lump sum of $200.00.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
19 November 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
DOCKET: T-2120-01
STYLE OF CAUSE: John R. Pinkney v. Her Majesty the Queen
REASONS FOR ORDER OF: Hargrave P.
DATED: 19 November 2002
WRITTEN REPRESENTATIONS BY:
John R Pinkney PLAINTIFF
Malcolm Palmer FOR DEFENDANT
SOLICITORS ON THE RECORD:
John R Pinkney PLAINTIFF on his own behalf
Vancouver, British Columbia
Morris A Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
Department of Justice
Vancouver, British Columbia