Rule 7-2 Examinations for Discovery

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The Order being sought in this case is pursuant to Rule 7-2 Examination for Discovery, specifically Rule 7-2(5) and 7-2(3).

This hearing went before the Honourable Madame Justice Burke.  The case is referenced as Yahey v. British Columbia, 2018 BCSC 524.  The Defendant British Columbia is seeking an Order that a second representative be examined for discovery or in the alternative, that the time period for the first discovery be extended.

The Order is being sought pursuant to Rule 7-2 (5):

Examination of party that is not an individual

(5) Unless the court otherwise orders, if a party to be examined for discovery is not an individual,

(a)the examining party may examine one representative of the party to be examined,

(b)the party to be examined must nominate as its representative an individual, who is knowledgeable concerning the matters in question in the action, to be examined on behalf of that party, and

(c)the examining party may examine

(i)the representative nominated under paragraph (b), or

(ii)any other person the examining party considers appropriate and who is or has been a director, officer, employee, agent or external auditor of the party to be examined.

There is an objective test that the court must consider in granting such an Order.  The Court may also utilize its discretionary authority in granting such an Order.

The Court states:

The Court may exercise its discretion to permit the appointment of a second representative if satisfied the first representative is unable or unwilling to inform himself or herself about the subjects of the examination for discovery to the extent that the discovery cannot be reasonably conducted on the basis of the examinee informing themselves: Conseil Scolaire Francophone de la Colombie-Britannique v. British Columbia (Education), 2012 BCSC 582 at para. 11. This is an objective test. In determining whether the first representative can satisfactorily inform himself, the court should consider, as noted in Conseil Scolaire at para. 10:

  1. the responsiveness of the witness under examination;
  2. the degree to which he has taken pains to inform himself;
  3. the nature and materiality of the particular evidence sought to be canvassed; and
  4. the most practical, convenient and expeditious alternative.

A second examination is justified where the first examinee could only answer questions “by obtaining information from persons with direct knowledge of the matters in issue to the extent that the process would become so artificial and cumbersome as to deter a legitimate inquiry”: North Star Properties Ltd. v. British Columbia (Minister of Transportation and Infrastructure), 2014 BCSC 2630 at para. 28.

On assessment, the first party examined was responsive.  Also, where an adequate response was not forthcoming, the party indicated he would inform himself and respond. There did not appear to be an unwillingness to respond to the questions posed at the Examination for Discovery.

Based on these facts, the Court was not prepared to issue the Order to have a second party discovered in this action.

The Court then turned its attention to the second Order being sought.

The relevant Rule to extend the time period for the first discovery is Rule 7-2(3) under considerations of the court which itemizes a number of factors and considerations the Court must review prior to making such an Order.

Considerations of the court

(3) In an application under subrule (2) to extend the examination for discovery period, the court must consider the following:

(a) the conduct of a person who has been or is to be examined, including

(i) the person’s unresponsiveness in any examination for discovery held in the action,

(ii) the person’s failure to provide complete answers to questions, or

(iii) the person’s provision of answers that are evasive, irrelevant, unresponsive or unduly lengthy;

(b) any denial or refusal to admit, by a person who has been or is to be examined, anything that should have been admitted;

(c) the conduct of the examining party;

(d) whether or not it is or was reasonably practicable to complete the examinations for discovery within the period provided under subrule (2);

(e) the number of parties and examinations for discovery and the proximity of the various interests of those parties.

The Court goes through a careful review and assessment of this case, reviews the factors and considerations, including Rule 1-3 (2) Proportionality and granted the Order to extend the time period under the first discovery.

[9] The relevant factor here, in Rule 7-2(3)(d), is whether or not it was reasonably practicable to complete the examination within the seven-hour period provided under Rule 7-2. The court must balance the principle that a wide-ranging examination is beneficial to both parties with the principle of proportionality: Mainstream Canada, a Division of Ewos Canada Ltd. v. Staniford, 2011 BCSC 1692 at para. 29.

[10]         The matter is complex. While the plaintiffs say the defendant must be efficient in examination for discovery and complexity is not sufficient to grant an extension, it was not reasonably practical to complete the examination for discovery in the period provided under Rule 7-2 given the matters at issue. Furthermore there are outstanding objections with respect to the production of documents which have impacted on the ability of the parties to finalize any examination for discovery within the specific time frame.

[11]         Taking into account proportionality and the purpose of examination for discovery to enable a party to determine the other side’s case, I direct that Chief Yahey be examined for a further four hours at a time and place to be determined between counsel for the parties.

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