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.

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.