Chorney v. Colwill (1986), 19 C.P.C. (2d) 195 (Ont. H.C.J.) [Chorney]

Chorney is an example where the court granted the moving party a second Examination for Discovery (ED).  Chorney  was a Family Law Reform Act action by the widow of a man who died in an MVA. The Defendant conducted an ED of the widow.  Following the ED, the Defendant received the results of the deceased Plaintiff’s autopsy report.  The report indicated that the deceased had alcohol in his blood at the time of the MVA.   The plaintiff knew of the autopsy result at the time of the first ED. The Defendants applied to re-examine the plaintiff but the application was refused. The defendants appealed.

 

Callaghan J. allowed the appeal.  He found that the information was significant to the issues at trial and that the Defendants were entitled to a second ED.  He offered no further elaboration.   Presumably, the evidence of alcohol in the blood of the deceased created a substantial new issue which the Defendant was entitled to address in an ED.

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.

Muslija v. Pilot Insurance Co. (1991), 3 O.R. (3d) 378

In Muslija, the court considered whether a party to a civil proceeding can be entitled to more than one Examination for Discovery (ED) of the opposing party.  Potts J. found that that the Rules contemplate only one ED for each party.  Consequentially, leave for further EDs, can only be granted in unusual circumstances.

The counsel for the Plaintiff discontinued an ED of the Defendant taking the position that counsel for the Defendant was frustrating the discovery process. A master’s decision granted the Plaintiff leave for a second ED.  The Defendant appealed the decision.  The court allowed the appeal.

In denying the plaintiff an opportunity to conduct a second ED, Potts J. reviewed the principles pertaining to EDs in general and the circumstances under which a second ED ought to be granted.

 

i.          Principles which govern EDs

Potts J. found that the general rules of civil procedure are designed to encourage and promote complete disclosure.  He reiterated the rationales for EDs as they were set out by Trainor J. in Ontario Bean Producers’ Marketing Board v. W.G. Thompson & Sons Ltd.  These rationales (Trainor Rationales) were listed as follows

(a)  to enable the examining party to know the case he has to meet;

(b)  to procure admissions to enable one to dispense with formal proof;

(c)  to procure admissions which may destroy an opponent’s case;

(d)  to facilitate settlement, pre-trial procedures and trials;

(e)  to eliminate or narrow issues;

(f)   to avoid surprise at trial . . .

It follows that a motion to conduct a second ED under 31.03(1) has to be couched in one or more of the Trainor Rationales with the greater view to promoting complete disclosure.

 

ii.         Allowing a second ED:

With respect to allowing leave for a second ED, Potts J. found that:

The proper procedure to be taken is based on the premise that there be only one examination for discovery. The court does have the authority to grant a further examination for discovery under rule 31.03, but leave is not usually granted.  The court will require the applicant to demonstrate al legitimate reason why the court should cause the examining party to undergo a further examination for discovery.

Potts J. did not specify what constitutes a legitimate reason for allowing a second ED.  However, he did offer three examples where a second ED had been allowed by the court.[1]  Chorney infra and April infra are discussed bellow.  The master’s decision of Hill-Clark-Francis Ltd. v. Schneider is not available on Quicklaw.


[1]Chorney v. Colwill (1986), 19 C.P.C. (2d) 195 (Ont. H.C.J.); April Investments Ltd. v. Menat Construction Ltd. (1975), 11 O.R. (2d) 364 (H.C.J.); Hill-Clark-Francis Ltd. v. Schneider, [1947] O.W.N. 520 (Master).

 

Alexander Rozine is an Associate at D’Angela Fox Vanounou LLP, a plaintiff-side personal injury firm in Toronto.