IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131220

Docket: M105474

Registry:
Vancouver

Between:

Alexandera Maria
Brown

Plaintiff

And

Surinder Kaur
Dhariwal and Daljit S. Dhariwal

Defendants

Before:
The Honourable Madam Justice Fleming

On
appeal from: An order of the Supreme Court of British Columbia, dated October
23, 2013 (Brown v. Dhariwal, Vancouver Registry Docket No. M105474)

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: The defendants appeal a
Master’s order made on October 23, 2013 dismissing the defendants’ application
for a continued examination for discovery of the plaintiff in accordance with
Rule 7-2(2)(a).

[2]            
The defendants submit the appeal raises the following
questions or issues:

1.    
Did the Master misapprehend the law or make a palpable
error of fact in deciding the defendants were not entitled to a continued
examination for discovery because of an initial examination conducted on June
11, 2012.

                               
(a)         
did the Master apply the correct principle of
law in determining whether a continued examination for discovery should be
allowed as a right under Rule 7-2 given the procedural circumstances of the
matter?

                               
(b)         
in the alternative, did the Master err in
applying his discretion and deciding a second examination for discovery was not
warranted where 18 months have elapsed since the original discovery, a vast
number of new documents have been produced since the prior discovery, including
11 expert reports that introduce new events that require a discovery of the
plaintiff to understand and assess the claim for either a settlement or to
prepare for trial?

Background

[3]            
The plaintiff brings an action for personal
injury related to a motor vehicle accident that occurred on December 11, 2008. Liability
has been admitted. She is a 38-year-old hairdresser who works in a hair salon
owned and operated by her father. She also does some contract work for L’Oreal
teaching hairdressing. The plaintiff alleges she has only been able to work
four days a week instead of five since the accident.

[4]            
The notice of civil claim was filed November 9,
2010. A notice of fast track was filed February 2, 2011. An examination for
discovery of the plaintiff was held on June 11, 2012. The discovery lasted less
than two hours and ended with counsel for the defendant saying as follows:

Subject to any
questions I have arising from my requests I am adjourning the discovery.

[5]            
Thirteen requests were made at the examination
for discovery, many of which were for production of various medical, treatment
and employment records. At the time the matter was set for a three-day trial
starting September 5, 2012.

[6]            
After the examination for discovery the
plaintiff served a number of expert reports including a loss of earnings report
that estimated the plaintiff’s future loss of earnings to be $452,000. The
three-day trial was adjourned. Given the magnitude of the claim, the parties
consented to an order removing the action from Rule 15-1 and a seven-day jury trial
was set for February 11, 2014.

[7]            
In addition to serving multiple expert reports,
the plaintiff also delivered numerous documents after their discovery. The
defendants’ notice of application sought orders for production of various
records, some of which the Master ordered produced.

The Master’s Ruling

[8]            
On October 23, 2013 after hearing the defendants’
application the Master delivered oral reasons for judgment. At para. 3 he
summarized the defendants’ position on the facts as follows:

The defendants
say that that examination was not concluded, that they have a right to continue
the examination for discovery, and that an order to that effect should be made
today. The defendants say that if they are wrong about a right to continue the
discovery given change in the complexion of the action from a fast track action
to a regular track action, then there should be an order for a second
examination for discovery. The defendants say — to quote defendants’ counsel
in her submissions — “there is much to be examined upon” because of the
passage of time and the production of more information since June of 2012, some
14 or 16 months ago. Indeed there have been more records produced; there have
been doctors’ reports, experts’ reports, massage therapy pre-accident reports
and employer information. Much information has been produced since the June
2012 discovery.

[9]            
With respect to the defendants’ alternative
argument for a second discovery the Master said as follows, again at para. 3:

…Those factors alone are not sufficient
grounds for a second examination for discovery. What is important is what the
court said in Sutherland v. Lucas quoting from West Coast
Transmission Company Limited v. Interprovincial Steel and Pipe Corporation Ltd.

To show that an
examination for discovery has been unsatisfactory so as to entitle a party to a
further examination, it is necessary to demonstrate that questions asked have
not been answered, or that answers given are incomplete, unresponsive or
ambiguous, or that follow-up questions have similarly not been answered in a
clear, complete and responsive way.

That has not
been shown here.

[10]        
Turning to the question of a continuing
discovery the Master stated at para. 5:

The only avenue
for the discovery to continue is to take up the defendants’ suggestion that the
earlier discovery was not concluded. The June 2012 discovery was ended with
counsel for the defendants saying: “Subject to the requests that have been made
I have finished this discovery.” As is often the case, there were obviously
requests made during the discovery for the production of a document or other
information.

[11]        
At paras. 6 and 7 the Master continued:

I am confident the defendants still have
that opportunity without knowing — because I was not referred to the requests —
what has been done there. As counsel for the plaintiff said, the Rules
now provide that those requests can be answered by way of an exchange of
correspondence which has the same effect as a continuation of the discovery. If
that is not the case, then once the defendants have made clear their position
with respect to those requests then it may be that the examination for
discovery will be reconvened to continue upon those requests that were made on
the occasion of the first discovery.

Other than that,
this is not an appropriate case for a second examination for discovery. … I am
not closing a door on a continuation of the discoveries on the basis of the
follow-up request, but that will have to be resolved between the parties on
another occasion.

Standard of Review

[12]        
Both parties agree that the usual standard of
review on an appeal of a Master’s order on a purely interlocutory matter, is
whether the order was clearly wrong (Abermin Corp. v. Granges
Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188) . The defendants submit that notwithstanding
this appeal is from an interlocutory order; the first question involves a
question of pure law and is therefore subject to a correctness standard.

[13]        
I agree that this is the standard for review of
such questions.

[14]        
In Northland Properties Ltd. v. Equitable
Trust Company (1992), 71 B.C.L.R. (2d) 124 Fraser J. concluded a judge
sitting on an appeal on a point of law from a Master has conventional appeal
jurisdiction in which the legal issue may be argued and decided on its merits. His
decision on this point was recently applied by Davies J. in Kaladjian v.
Jose, 2012 BCSC 357, in determining a Master’s interpretation of one of the
Rules of Court.

[15]        
Here part of the first question is one of mixed
fact and law which involves applying a legal standard to a set of facts, which
is whether Rule 7-2 provides a right to up to seven hours of discovery upon the
action being removed from fast track, and where the prior discovery was
adjourned subject to requests rather than completed. Counsel made no
submissions regarding the standard of review for such questions. It does not
appear to be entirely clear.

[16]        
Justices Iacobucci and Major writing for the
majority of the Supreme Court of Canada in Housen v. Nikolaisen, 2002
SCC 33, discussed the different standards of review on appeal of final order in
a negligence action. In discussing the standard of review for matters of mixed
fact and law the majority found there is a spectrum, with palpable and
overriding error at one end and correctness at the other. For example, the
mixed question of fact and law involved in findings of negligence are subject
to a standard of palpable and overriding error. The majority further held a
determination of whether or not the standard of care was met by a defendant is
subject to that same standard, unless it is clear the trial judge made some extricable
error in principle with respect to the characterization of the standard or its
application. Then the error is subject to a correctness standard. For the
reasons set out below, in my view it is unnecessary to firmly resolve the
question of the standard for review of a mixed fact and question for
interlocutory appeals.

Continued Discovery as a Right

[17]        
Turning to the merits of the first question. The
defendants argue an entitlement to further, as opposed to a second discovery,
for up to seven hours because they are now exercising a right under Rule 7-2
and did not conclude the earlier discovery. The defendants’ argument turns in
part on what they characterize as a material error of fact arising from the Master’s
apparent conclusion that the discovery had finished rather than had been
adjourned.

[18]        
It is clear from the transcript of the
examination for discovery that the Master misstated the concluding remarks of
counsel which were:

Subject to any questions I have arising from
my requests I am adjourning the discovery”, and not, I have “finished
the discovery

[Emphasis added].

[19]        
I would agree that this is a material error if
on that basis the Master dismissed a continued discovery all together, but he
did not. He dismissed the application that it continued in accordance with Rule
7-2(2)(a) namely for up to seven hours, but also concluded it may be reconvened
to continue upon the requests made at the first discovery. In other words, he
did not conclude it was finished, despite what he said.

[20]        
The question then becomes did the Master err in
concluding the defendants did not have a right to a further seven hours of discovery
in the circumstances? In my view he did not and decided this aspect of the
application correctly. The Rules of Court do not specify what happens
when a case is removed from fast track. Any reconvening or continuation of the
first discovery, however, would have to occur pursuant to Rule 7-2. There is no
dispute that both Rules 7-2 and 15-1 provide a party to an action with a right
to one examination for discovery of a party adverse in interest.

[21]        
The import of the defendants’ argument that they
are entitled to seven hours as a right, is that in every case where an action
moves from fast track to regular and discoveries have been adjourned as opposed
to finished, parties are then entitled to an additional seven hours of
discovery.

[22]        
Bearing in mind the object of the Rules
and the implications of such an interpretation for parties who begin under the
regular track, I cannot agree with this interpretation. What the defendants are
entitled to is a continuation of the adjourned discovery without the constraint
of the two-hour time limit that applies in the fast track.

Scope of Continued Discovery

[23]        
The defendants then argue the Master erred in
limiting the scope of the continuation of the discovery to matters arising from
the requests. Relying on the case of Li v. Oneill, 2013 BCSC 1449 (Li),
they say the scope of the right at the continued discovery extends to questions
left on the record, questions based on documents requested at the discovery and
subsequently produced, and questions based on new material, whether or not it
was produced in accordance with a request back on the record.

[24]        
Indeed that was the conclusion of the Master in
Li where at paras. 15 and 16 she writes:

I am of the view that the examination for discovery was
adjourned as contemplated by these rules. Thus, the defendant is entitled to
continue its examination for discovery regarding questions left on the record
and I am of the view that logically extends to questions based on documents
requested at the discovery and subsequently produced.

As the examination for discovery
was not concluded, the heavy onus required to justify a further discovery
referred to in Sutherland v. Lucas is not engaged. Given the extensive
document production since the examination for discovery was conducted, I am
also of the view that the defendant is entitled to continue its examination for
discovery based on the new material, whether or not it was produced in
accordance with a request left on the record.

[25]        
The defendants’ position is that the Master in
this case was bound by Li and erred in failing to apply that aspect of
the decision which provided for continued discovery on new material, as well as
questions and documents arising from requests left on the record.

[26]        
The leading authority on the practice of judges
following the decisions of other judges of the same court is Re Hansard
Spruce Mills Ltd., [1954] 4 D.L.R. 590 (Re Hansard) where
Wilson J. stated at paras. 4 and 5:

…I will only go against the judgment of
another judge of this Court if:

                                          
(a)         
Subsequent decisions have affected the validity
of the impugned judgment;

                                          
(b)         
it is demonstrated that some binding authority in
case law, or some relevant statute was not considered;

                                          
(c)         
the judgment was unconsidered, a nisi prius
judgment given in circumstances familiar to all trial Judges, where the exigencies
of the trial require an immediate decision without opportunity to fully consult
authority.

5.    
If none of these situations exist I think a trial Judge should follow
the decisions of his brother Judges.

[27]        
In United States v. Fiessel, 2004 BCSC
908 (Fiessel), Goepel J. as he then was, engaged in a careful analysis
of the principles that ground the reasons in Re Hansard. Noting its
consistent application by trial judges of this province for 50 years, he
characterized the decision as setting forth an internal rule of practise
respecting matters of stare decisis or guidelines by which members of
the Supreme Court should treat judgments of their fellow judges. One of the issues in the case was the constitutionality of a
provision of the Extradition Act, S.C. 1999, c. 18 dealing with the admissibility
of evidence. A prior decision found the provision unconstitutional. The requesting
state argued that decision was wrongly decided and should not be followed. Goepel
J. found himself bound to do so, expressly leaving the issue of its correctness
to the Court of Appeal, because none of the three exceptions identified in
Re Hansard applied.

[28]        
In R. v. Sipes, 2009 BCSC 285 (Sipes),
Smart J. considered both Re Hansard and Fiessel and concluded:

[10]      The
approach advocated … is not a rule of law; rather, it is a wise and prudent
prescription for the exercise of judicial discretion. … Consistency, certainty,
and judicial comity are all sound reasons why this is so.

[29]        
To the three criteria set out in Re Hansard
he added this:

… At all times, the application of the rule should advance the
interests of justice, not undermine them.

[30]        
He then concluded it
will almost always be in the interests of justice for a judge to follow the
decision of another judge of the same court.

[31]        
Counsel here has provided the court with no
other authority dealing with the scope of examination upon a continuing of a
discovery that was adjourned subject to requests.

[32]        
Although the Master made no reference to Li,
it is clear from his reasons he did not follow its approach with respect to the
issue of the scope of continuing discovery.

[33]        
In Allen-Trenholme v. Simmie, 2006 BCSC
542, Davies J. granted an appeal from a Master’s order in part because he
declined to follow a decision of a fellow Master. At issue was the jurisdiction
of a Master to require parties to sign extra provincial authorizations. Not
satisfied that the Re Hansard criteria for the refusal to follow a
decision had been made out, the court found reversible error.

[34]        
The plaintiff’s submission on this issue is that
Li can be distinguished based on the Master’s comments in dicta. With
respect, this is not grounds for distinguishing an authority. The facts as
found by the Masters in each case are not distinguishable in my view. Both
involved motor vehicle accidents in which the plaintiffs alleged various
injuries and were making claims for loss of earning capacity. Both plaintiffs
were discovered for the first time several years after the accidents with
multiple requests left on the record. The defendants then sought to continue
the discovery, or in to the alternative a second discovery based on the further
passage of time and the production of many new documents.

[35]        
There is nothing before me to suggest that any
of the exceptions identified by Wilson J. in Re Hansard might apply here.
Nor is there anything to suggest the application of the rule in Re Hansard
would not have advanced the interests of justice, using the language of Smart
J. in Sipes.

[36]        
Accordingly, I conclude the Master erred by not
applying the authority of Li in determining the scope of continued
discovery by the defendants. If it is not sufficient to conclude he was
incorrect in doing so, I find he was clearly wrong.

[37]        
I therefore vary the order of the Master to
allow the defendants to continue their discovery of the plaintiff regarding
questions left on the record, questions arising from documents requested at the
discovery, and questions arising from new material. The total length of the
first and the continued discovery may not exceed seven hours.

[38]        
Given the Master correctly decided the discovery
of June 2012 was not finished but adjourned subject to requests, I decline to
consider the defendants’ alternative argument that the Master was clearly wrong
in declining to order a second discovery.

[39]        
The defendants will have their costs for this appeal.

“Fleming J.”