IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20111102

Docket: S088168

Registry: Vancouver

Between:

Allan James Scott Burgess

Plaintiff

And:

Buell Distribution Corporation, Buell Motorcycle
Company,
636221 B.C. Ltd., doing business as Barnes Harley-Davidson/Buell,
XYZ Companies, John Doe 1, John Doe 2, John Doe 3, and
Harley-Davidson Motor Company Group, LLC and Fred Deeley Imports Ltd., carrying
on business as Deeley Harley-Davidson Canada

Defendants

And:

Harley-Davidson Motor Company Group,
LLC,
Fred Deeley Imports Ltd., carrying on business as
Deeley Harley-Davidson Canada

Third Parties

Before: The Honourable Mr. Justice
Grauer

Oral Reasons for Judgment

In Chambers

[1]            
THE COURT: The plaintiff applies for leave to
have his expert advisor attend at the examination for discovery of a
representative of the defendant Harley-Davidson Motor Company Group, LLC,
currently scheduled to take place in Milwaukee on November 15, 2011 and in
Vancouver on November 29.

[2]            
The parties agree
that the issues in this action, which is a claim for damages for a very serious
personal injury, include matters requiring an understanding of technical
concepts relating to the design, manufacture, and testing of motorcycles and
sidecars designed and manufactured by Harley-Davidson.

[3]            
The representative
of Harley-Davidson to be examined is an engineer, and Harley-Davidson does not
dispute that the issues involve sophisticated technical and engineering matters
beyond the knowledge of most counsel.

[4]            
Counsel for the
plaintiff takes the position that the presence of his expert during the
examination of the defendant’s representative is required in order to ensure a
full and fair discovery.  He asserts that the expert’s presence at the
discovery, as opposed to waiting outside or in a hotel room, will reduce the
time and expense involved.

[5]            
Counsel for the
defendant opposes the application.  He submits that this is no different from
any other case involving specialized expertise such as claims against surgeons,
pilots, accountants, engineers or architects.  Counsel are expected to brief
themselves on the technical aspects before conducting their examinations. 
Having an expert attend the examination, he submits, is likely to add to the
expense, increase the length of time that the discovery will take, and be
disruptive due to such things as whispered exchanges and the passing of notes.

[6]            
The Rules do not
specifically address this issue, but it has certainly been the practice in this
province that only the parties and their legal representatives may attend
examinations for discovery in the absence of consent or an order of the court.

[7]            
In Ian
Macdonald Library Services Ltd. v. P.Z. Resort Systems Inc. (1985),
67 B.C.L.R. 269, Madam Justice Southin, then of this Court, considered a
similar application and said this:

[6]        I
think the simple and sensible answer to this question is that counsel should be
able to do so whenever the nature of the case is such that counsel cannot
reasonably be expected to conduct a full and proper cross-examination of the
witness being discovered without expert assistance.

[7]        Whether
in any given case such expert assistance is necessary will depend, among other
things, on:

1.         The
issues in the action;

2.         The level of technical and
scientific knowledge which can reasonably be expected of counsel generally at
any given time;

3.         The
extent of inconvenience to which the parties may be put if counsel must conduct
part of an examination then adjourn it, consult with an expert and conduct the
rest of it perhaps on some other occasion.

[8]            
Similar
considerations were voiced by Mr. Justice Klebuc of the Saskatchewan Court of
Queen’s Bench in Ormiston v. Matrix Financial Corporation, 2002 SKQB
257.

[9]            
I find that the
issues in this case raise a level of technical and scientific knowledge beyond
what can reasonably be expected of counsel generally.  While counsel normally
are very adept at quickly, if temporarily, acquiring specialized knowledge
relevant to their cases, it would be unwise I think for the court to second-guess
the judgment of counsel as to what is required for the full and fair
examination of an opposite party who possesses specialized expertise in this
type of case.  Given the nature of the issues, I see nothing that strikes me as
unreasonable about the request.

[10]        
What must be
considered however is whether accommodating the request of examining counsel
would result in prejudice to the party being examined.  If so, then the court
must attempt to weigh that prejudice against the prejudice to the examining
party of being deprived of expert assistance.

[11]        
In this case, no
prejudice has been put forward by Harley-Davidson other than the concerns of
disruption, increased expense, and extended time.  As to disruption, both
counsel are experienced and I see no reason to suppose that this concern is
likely to materialize in any meaningful way.  As to increased expense, the
evidence does not satisfy me that such a result is likely.  Similarly, the time
is at least as likely to be shortened as it is to be extended.

[12]        
Counsel for the
defendant suggests that this will lead us down a slippery slope to a result
where counsel will always request expert assistance at examinations for
discovery in technical cases.  I very much doubt that that will follow, but in
any event each case will be dealt with on its individual circumstances.  Where
the examining party can establish the need, and the party being examined cannot
establish prejudice, there is no reason to worry.  It did not worry Madam
Justice Southin.

[13]        
As to the concept
of proportionality, it seems to me that granting the relief requested is more
likely to promote than inhibit the just, speedy, and inexpensive determination
of this proceeding on its merits taking into account the amount involved, the
complexity of the issues and the importance of conducting a full, fair and
informed examination for discovery.  Accordingly, leave is granted as
requested.

[14]        
Costs will be to
the plaintiff in the cause.

"GRAUER
J."