April Invts. Ltd. v. Menat Construction Ltd. (1975), 11 O.R. (2d) 364 (H.C.) [April]

In April, the Court granted the Plaintiff leave to examine a Defendant regarding the findings from a Defendant’s expert report.  The report was conducted after the EDs for both parties have been completed.

The Plaintiff took the position that new facts may have come to light as a result of the report and that the Plaintiff was entitled to examine the Defendant with respect to these facts.  Pennell J. agreed with the Plaintiff.  He found that:

The court has jurisdiction to order further discovery where the examination already had has [sic] failed to give the party seeking it the discovery to which he is entitled. To the making of that appraisal one can do little more than offer suggestion of example. Justification for such an order includes the following: “[Where] special grounds are shown”: Martin v. Deutch et al., [1943] O.W.N. 774, [1943] 4 D.L.R. 798; “[Where] it is in the interest of justice”: Standard Trading Co. v. Seybold (1904), 7 O.L.R. 39; “Where justice so requires”: Hellofs v. Royal Bank of Canada, [1940] 1 W.W.R. 6.

Pennell J. did not specify whether a second ED was granted in accordance with special grounds or in the interests of justice.

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

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.