IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151110

Docket: M130026

Registry:
Vancouver

Between:

Amanda Nordin

Plaintiff

And

Terry Wong

Defendant

Before:
Master Scarth

Oral Reasons for Judgment

[1]            
THE COURT: The defendant in this personal injury action applies
for an order that the plaintiff attend a continuation of her examination by the
defendant to take place within seven days of the order made for such
continuation. The action is set for trial on November 30 for five days.

[2]            
According to the notice of application, it is brought pursuant to Rule 7‑2(2)
and (17). Rule 7‑2(2) provides for examinations of up to seven hours, and
Rule 7‑2(17) provides for re‑examination during a discovery. I am
not sure of the relevance of that subrule, frankly, but in any event it is the
defendant’s position that, given the first examination of the plaintiff was
limited to two hours, because the matter was at that time governed by the fast
track rule, and given that the plaintiff has, since the discovery was
conducted, attempted and failed to return to work at the job which she held at
the time of the discovery, and that she has attempted other employment, the
defendant should have the opportunity to discover her on those efforts to work.
The submission is that otherwise the defendant will be prejudiced in the
presentation of his defence at trial.

[3]            
The plaintiff opposes the application. In doing so, she relies on the
concluding words of the May 2014 discovery, the fact that the case has not
materially changed since the first discovery, and the defence delay in bringing
this application with the trial only 19 days away. It is the plaintiff’s
submission that it is the plaintiff who will be prejudiced if she is required
to attend a discovery during the time that should be devoted to trial
preparation.

[4]            
To the extent that this is an application for a continuation of the
examination for discovery which took place in May of 2014, I am satisfied that
it should be dismissed. In my view, the discovery in May 2014 was concluded and
the decision in Li v. Oneil, 2013 BCSC 1449, is distinguishable on that
point.

[5]            
Counsel conducting the discovery stated it to be concluded. Responses
have been provided to the outstanding document requests, and the defendant here
concedes that nothing arises from the material which was so provided. Further,
there is no continuation as of right once a matter is removed from fast track: 
Brown v. Dhariwal, 2013 BCSC 2419. No conditions were placed on the
removal of the action from fast track, apparently it not being in the
contemplation of the defendant at the time that they might require a further
discovery.

[6]            
In my view, therefore, the fact that Rule 7‑2(2) provides for
seven hours of discovery does not assist the defendant here.

[7]            
To the extent that this is an application for a second discovery, the
requirements have been set out in the case law, beginning with West Coast
Transmission Company Limited v. Interprovincial Steel and Pipe Corporation Ltd.
(1984) 59 B.C.L.R. 43 (S.C.).

[8]            
It is conceded by the defendant that certain factors that are taken into
account on applications for second discoveries do not apply here. That is,
there is no suggestion that the plaintiff did not provide full and frank
disclosure on her first discovery, nor does the defendant rely on passage of
time.

[9]            
The argument is essentially that events have occurred since the last
discovery which would materially alter the prosecution of the case or the
defence of it:  see Sutherland v. Lucas, CanLII 3393 (BC SC).

[10]        
Having considered the submissions of counsel on this point, I accept the
submission of the plaintiff that the complexion of the case here has not
materially changed. There have been no amendments to the pleadings, no new
injuries. The changes with respect to the plaintiff’s employment do not, in my
view, materially change the complexion of the action, but rather, as the
plaintiff submits, fall within the rubric of the plaintiff’s claim for loss of
future earning capacity.

[11]        
While the rules do not limit a party to one discovery, the case law
places a heavy onus on the party seeking a second discovery and, in my view,
the onus has not been met in this case.

[12]        
The application is dismissed with costs to the plaintiff in any event. Thank
you.

Master
S. Scarth