Summary Trial Documentary Evidence – Examination for Discovery
Be sure to review and familiarize yourself with the relevant Rule 7-2 – Examinations for Discovery.
The purpose of this post relates to the use of evidence derived from an Examination for Discovery for the purpose of a Summary Trial application.
The relevant rule that governs the type of evidence that can be adduced at a Summary Trial hearing is: Rule 9-7 (5) Evidence on Application. The subsection that references evidence from a Examination for Discovery is (c):
(c) any part of the evidence taken on an examination for discovery
Examination for Discovery transcripts can be appended to an affidavit in a Summary Trial hearing. There are a few tips to be aware of. To begin, ensure that the evidence is “organized and not prolix or overwhelming” as noted in Chu v. Chen, 2002 BCSC 906 (CanLII). The evidence you intend to rely on must carefully be considered, and meticulously organized.
- What not to do:
With respect to examination for discovery evidence, it is bad practice to simply attach the whole transcript as an exhibit to an affidavit.
- How to adduce relevant portions of a discovery transcript as evidence:
The party should specify the questions it intends to rely on, and include those portions of the transcript as an exhibit to an affidavit.
Newton v. Newton (2001), 97 B.C.L.R. (3d) 186, 14 C.P.C. (5th) 270 (S.C.) at paras.  and :
If a party intends to rely on the examination for discovery of the opposite party, the proper procedure is for the party tendering the affidavit to swear an affidavit attaching a transcript of the discovery and to set out in the affidavit the questions and answers in the discovery upon which the party relies. Only the portions of the transcript read into evidence by counsel are evidence at the trial.
When appending relevant portions of a discovery transcript, make sure you are:
- well organized;
- include everything needed to prove your position;
- do not include anything that is not needed;
- put the questions and answers together and number them; and is easy to read;
- not inconsistent with your client’s evidence; and
- discrediting the opposing party’s credibility.
Bring the original discovery transcript with you in case the court requests it.
Be aware of the restricted use of transcript evidence and how to appropriately utilize this type of evidence at a hearing. Failure to do so may result in the evidence being deemed inadmissible.
Rule 12-5(46) provides:
(46) If otherwise admissible, the evidence given on an examination for discovery by a party … may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:
(a) the adverse party who was examined;
WHAT DOES “ADVERSE IN INTEREST” MEAN?
As taken from Liversidge v. Wang, 2012 BCSC 1974 (CanLII):
 The decision in Menzies v. McLeod (1915), 1915 CanLII 419 (ON SC), 34 O.L.R. 572 (S.C.), sets out the definition of “adverse in interest” as follows:
 In Whieldon v. Morrison, 1934 CanLII 228 (BC CA),  4 D.L.R. 366, (B.C.C.A.), Martin J.A. stated:
… the appellants are not compelled to answer the questions they refused because as regards them they are not “adverse in interest,” and the questions are directed to “the founding of some other complaint” than that which is in issue between the plaintiff and them alone. (at para. 30)
 In Banaschek v. Banaschek, 2001 BCSC 67 (CanLII), the plaintiff in a motor vehicle accident wanted the nominal defendant (her husband) to attend a further examination for discovery. The issue before the court was whether or not the husband was still adverse in interest to the plaintiff. In allowing the further examination for discovery, Master Barber stated:
Opposed; contrary; in resistance or opposition to a claim, application, or proceeding. Having opposing interests; having interests for the preservation of which opposition is essential.
It was decided long ago that one spouse may sue the other where one spouse is the defendant and has some insurance which may pay any judgment. The defendant here has an obligation to assist the insurer in the defence of the claim. If he were not to do so, he could be found to be in breach of his policy and perhaps the policy would not apply. Also, as I have indicated, the defendant may be facing a potential limits issue, for all I know. He certainly has the interest that I indicated earlier and that is in keeping the judgment, if any, to within the limits of the policy.
How adverse in interest must the defendant be? How material must this difference be? It appears to me that once the plaintiff is allowed to sue the defendant, the defendant is on the face of the matter adverse in interest and, so far as I can see, actually has some interest which may be opposite to the plaintiff. Therefore, I conclude that the usual rules of discovery apply. The use, though, to which the discovery may be put will be completely up to the trial judge. (at para. 13)
ADVERSE PARTY LIMITATION: The Rules of Court limit the evidence to being used against “the adverse party who was examined“. In other words, a litigant can’t use their own transcript to bolster their own case.
The Plaintiff was involved in a motor vehicle collision. In this case, the Defendant brought a summary trial application seeking to dismiss the claim. The Plaintiff produced an affidavit which stated that “in my examination for discovery I described precisely how the accident occurred” and went on to attach “as an exhibit 29 pages for her examination for discovery conducted by counsel for the defendants“.
The Defendant objected to this evidence arguing it was inadmissible. Mr. Justice Punnett agreed and provided the following reasons explaining the limitation of discovery evidence at trial.
 The plaintiff’s affidavit appends portions of her examination for discovery by counsel for the defendants. The defendants object to the tendering of discovery evidence in this way.
 Summary applications are based on affidavit evidence. However, they are still trials and as such are governed by the rules and evidentiary requirements of a regular trial. Section 25… is relevant.
 I am satisfied that the discovery evidence sought to be introduced by the plaintiff cannot be relied upon by the plaintiff for the truth of its contents.
CAN A THIRD PARTY BE “ADVERSE IN INTEREST” TO A PLAINTIFF?
See a great decision on the question of whether the evidence provided at the Examination for Discovery of a representative of a Third Party can be used on a summary trial application by the Plaintiffs in the case that they advance against the Defendants. Interesting read – the relevant rules are all outlined, a discussion on what does “adverse interest” mean. Liversidge v. Wang, 2012 BCSC 1974 (CanLII) which has been referenced above.
I would like to highlight the relevant rules that apply on whether evidence taken from an Examination for discovery can be used at a Summary Trial hearing – this will include a scenario of if the evidence given by a third party:
Applicable Civil Rules:
 The Supreme Court Civil Rules state the following regarding the question raised:
(b) Rule 9-7(5): Unless the Court otherwise orders, on a summary trial application, the applicant and each party of record may tender evidence by any or all of the following:
…(c) any part of the evidence taken on an examination for discovery…
(c) Rule12-5(46) applies to subrule (5) of this Rule.
(d) Rule 12-5(46):If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 7-2(5) to (10) may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:
(a) the adverse party who was examined;
(b) the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 7-2(5) to (10);
(e) Rule 12-5(47): If a person examined for discovery was, at the time of the examination, a former director, officer, employee, agent or external auditor of a party, any part of his or her evidence may be tendered at trial if notice has been served on all parties of record at least 14 days before trial specifying the part of the evidence intended to be given at trial.
(f) Rule 12-5(48): Any party of record may require the attendance at trial of a person whose evidence taken on examination for discovery is intended to be tendered under subrule (47), and, if the evidence is tendered, all parties of record may cross-examine that person.
 The only Rule that provides a definition of adverse party is Rule 12-5(19). However, that Rule only applies to Rule 12-5(20) to (23) which deal with adverse witnesses at trial and the ability to require the attendance at trial of an adverse witness. Accordingly, reliance must then be placed on previous decisions dealing with the phrase “adverse in interest” to ascertain the effect of the phrase “adverse party” used in Rule 12-5(46).
Conflicts in Evidence / Examinations for Discovery
Be aware, that where there are conflicts in the evidence, transcripts from an Examination for Discovery transcript may be helpful, but where a discovery has not been conducted and the Court can not resolve conflicts through the documentary evidence provided, the application may be deemed not suitable for summary disposition.
 In Mayer v. Mayer, 2012 BCCA 77 (CanLII) at paras. 82-83, the Court of Appeal noted that where issues of credibility arise it may well be unjust to proceed under the summary trial procedure without permitting a party to develop their case fully through examinations for discovery, cross-examination of the parties on their affidavits or through a conventional trial if necessary.
 Although there was a conflict on the affidavit materials in Charest, Melnick J. concluded that there was also documentary material, including discovery evidence, that permitted the court to conclude that when all the materials were considered in totality, the evidentiary conflicts could be addressed and the matter resolved by the summary trial procedure in a manner other than by preferring one view over the other.
 In the case at bar, there have been no examinations for discovery conducted.
As there were conflicts, and no discovery completed in this case, and most importantly, the documentary evidence that was available in this hearing, was simply not enough to assist the court with resolving the conflicts that existed. The Court dismissed this summary trial application and said the following:
I direct that the matter should be set down for either a pre-trial conference or case management conference no later than October 31, 2012 with a view to setting an early trial date and establishing an expedited schedule for any pre-trial matters including disclosure of lists of documents and any examinations for discovery.
It is always a best practice to discuss whether it is in the interest of your client’s claim to conduct a discovery prior to scheduling any summary trial application. Most importantly, you should begin with a very careful review of the evidence that is available for the summary trial hearing, and the documentary evidence that exists that may be helpful to the Court, and identify the conflicts. Ask yourself “do you have sufficient documentary evidence that will assist the Court in resolving the conflicts?” You do not want to proceed to a summary trial prematurely because it is a lot of work and it is also costly (although not as costly as a conventional trial), especially if the Court is forced to adjourn on the basis that there is not enough evidence to assist with resolving conflicts.
Thank you to Savina Sohi, Counsel, Personal Injury and Family Law Lawyer for her contribution to this article.
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