IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20110727

Docket: M082399

Registry: Vancouver

Between:

Kingsley Nwachukwu

Plaintiff

And:

Manuel Ferreira

Defendant

Before: The Honourable Mr. Justice
Willcock

Oral Ruling

[1]            
THE COURT: 

Introduction

[2]            
The defendant
applies for a number of related orders with respect to the conduct of
examinations for discovery in a civil action arising out of a motor vehicle
accident on September 24, 2006.  This action was commenced by Writ and a Statement
of Claim filed on March 15, 2008.  The plaintiff claims to have suffered
injuries to his cervical, dorsal and lumbar spine and musculature, injury to
his neck, back, shoulders, chest, right hand, wrist, and arm, his right knee,
ankle, and leg, and left foot.  As a consequence of these injuries, he says he
has suffered headaches, post-traumatic stress, fatigue and sleeplessness.

[3]            
He seeks damages
as compensation for pain and suffering and loss of enjoyment of the amenities
of life, past and prospective income loss and loss of income earning capacity
and special damages as compensation for the cost of medical treatment and
replacement of home making services.

[4]            
The statement of
defence was filed on November 25, 2008.  Liability was admitted, but the defendant
denies the plaintiff has suffered the alleged injuries and in the alternative
claims that the plaintiff was suffering from pre-existing injuries or has been
affected by subsequent accidents, injuries or conditions.

[5]            
I have reviewed
three affidavits filed by the parties.  The first affidavit as sworn by Ross
McQuarrie on July 6, 2011.  The second is an affidavit of Siria Bonilla sworn
July 15.  The third is a responsive affidavit of Mr. McQuarrie sworn July
19, 2011.  The affiants are paralegals in the parties’ lawyers’ respective
offices.  Whereas Mr. McQuarrie attests to facts and appends documents
that are left to speak for themselves, the affidavit of Ms. Bonilla is
argumentative, contains hearsay without attribution and expresses legal
opinions.  It ought not to have been sworn or filed.

[6]            
Mr. Markham-Zantvoort
acknowledges that he drafted this affidavit.  He ought not to have done so and Ms. Bonilla
ought not to have put in the position of having to swear such a deficient
document for her employer.

[7]            
The following
summary of the evidence on this application is drawn from the transcripts and
the documents exhibited to the affidavits.  The defendant has in his possession
some evidence the plaintiff was involved in prior motor vehicle accidents.  A
December 1, 2006 consultation report from a neurologist appended to Mr. McQuarrie’s
affidavit refers to one prior rear-end collision said by the plaintiff to have
caused no injury.  The defendant has disclosed documents identifying claims for
accidents involving the plaintiff on August 26, 2006; April 3, 2007; and
December 13, 2008.

[8]            
The December 1,
2006 consultation report from the neurologist suggests a wide range of symptoms
may be attributed to the September 2006 accident.  It is said to have had
emotional, social and economic consequences.  The consulting neurologist
described the effects of the injury on Mr. Nwachukwu as including
headaches, emotional sequelae, an inability to work and a breakup with his
girlfriend.  There is some evidence of stress-related health problems preceding
the September 2006 accident.

[9]            
Also appended to Mr. McQuarrie’s
affidavit are letters written in December of 2002 and June 2004 from a family
physician apparently to a lawyer acting for the plaintiff.  In those letter, the
GP expresses the opinion the plaintiff has suffered from possible
post-traumatic stress disorder, to which she attributes his headaches,
nightmares and intrusive thoughts.  Traumatic experiences in his native Nigeria
are said to have been contributory to the stress disorder.

[10]        
There is also some
evidence of post-accident health problems arising from independent causes. 
Excerpts from Mr. Nwachukwu’s medical records in evidence indicate that he
returned from Nigeria on July 10, 2008, and was admitted to the hospital sick
with symptoms of malaria for six days between July 12 and 18, 2008.

[11]        
The plaintiff was
first examined for discovery on November 4, 2009.  Mr. Hinton conducted
the discovery of the defendant.  Mr. Markham-Zantvoort attended with the
plaintiff.  They were 57 objections, by my count, to questions asked by counsel
and numerous other interruptions of the examination for discovery by Mr. Markham-Zantvoort.

[12]        
Mr. Hinton
asked plaintiff’s counsel to set out the basis for objections on the record,
but he refused to do so, indicating that he required counsel for the defendant
to produce authority for the proposition that that was the appropriate
practice.  In almost every case of an objection, counsel simply said to his
client on the report "do not answer that".  The examination for
discovery was not completed.

[13]        
The discovery
continued on March 1, 2011.  Mr. Markham-Zantvoort appeared for the
plaintiff again.  Mr. Burnett appeared for the defendant.  There were 48
objections, by my count, to questions asked by counsel and again numerous other
interruptions of the examination for discovery by Mr. Markham-Zantvoort.

[14]        
Mr. Burnett
asked plaintiff’s counsel to stop when he tried to explain the basis for one
objection on the record.  In almost every case of an objection on this
discovery, counsel simply said, "I object to that question" or
"objection" on the record.  It would not be possible for the reader
of the transcript, such as Ms. Bonilla, to identify the basis for most
objections on the first or second examination for discovery.

[15]        
The examination
for discovery was not completed.  It ended at noon with the following comment
by Mr. Burnett:

Counsel,
your multiple interruptions and positions have completely frustrated the
discovery process.  I am going to adjourn it and seek a continuation.

[16]        
That was not
done.  A trial was approaching.  The case was set for hearing over four days
commencing on May 31, 2010.  Counsel for the defendant, then Mr. Burnett,
filed a trial certificate on May 12, 2010, certifying that he had completed all
examination for discovery.  The trial commenced before Mr. Justice Cole,
but it was adjourned.  It was reset for hearing over ten days commencing on
September 6, 2011. 

[17]        
Following the
adjournment, the defendant conducted a further examination for discovery of the
plaintiff, apparently by consent, on the afternoon of May 30, 2011.  On this
occasion, Mr. Fahey appeared for the plaintiff.  Mr. Virgin appeared
for the defendant.  There were 12 objections to questions asked by counsel but
relatively few interruptions of this examination for discovery by Mr. Fahey. 
Mr. Fahey stated the basis for most of his objections.  In most cases, the
objections were to questions with respect to the allegations that would be made
in the case or claims that might be made at trial.  Mr. Fahey appears to
have objected to questions probing the case that would be advanced by counsel,
rather than evidence of the plaintiff himself.  In one case, an objection was
made to a question thought to touch upon solicitor/client communications.  Mr. Virgin
adjourned the discovery after two hours saying that he wanted to have questions
answered clearly and cleanly.

[18]        
On July 15, 2011,
after the bringing of this application, counsel for the plaintiff purported to
respond to 45 questions to which objection had been made at the examination,
pursuant to Rule 7-2(23) and 7-2(24).  Plaintiff’s counsel continues to object
to a wide range of questions.

[19]        
There are two
schedules to the affidavit of Ms. Bonilla.  Schedule A sets out questions
that have now been answered in writing in some fashion.  Schedule B sets out
unanswered questions and, in summary, form counsel’s objections to answering
those questions.

[20]        
The applicant
seeks orders, set out in detail in the notice of application, requiring the
plaintiff to attend at a further examination for discovery and answer questions
from the examinations for discovery of November 4, 2009; March 1, 2010; and May
30, 2011, without consulting with counsel as to the form and content of his
responses.  The question numbers are identified in the application.

[21]        
An order is sought
permitting defence counsel to conduct an examination for discovery of seven
hours in duration, directing counsel for the plaintiff to limit objections to
those that are clearly necessary and consistent with the principles set out in
the case law, and for costs of the application.

Argument

[22]        
The applicant says
counsel has improperly objected to relevant questions and has improperly
interfered with the examination for discovery.  The defendant is not content to
accept the plaintiff’s written answers to questions and seeks to continue
examinations for discovery under appropriate conditions.

[23]        
The respondent
acknowledges that some objections ought not to have been made, without
identifying which these are, but says:

1.              
the discovery has already exceeded in duration the seven hours permitted
by Rule 7-2(2) permitted by the rules;

2.              
the defendant’s counsel has once certified that discovery is complete
and is therefore estopped from continuing examination for discovery; and

3.              
that some objections can properly be maintained.

[24]        
In response, the
applicant says the discovery has been impeded and Rule 7‑2(3) permits
additional time to be given to a party when that is the case.  Further, there
has already been one discovery subsequent to the issuance of the trial
certificate and, thus, an implicit acknowledgment that the certificate is no
obstacle to further discovery.  Last, he says, there is no basis for the continuing
objections.

[25]        
The applicable
Rule to which reference must be made is Rule 7-2, specifically ss. (2), (3),
(4), and (18).  Rule 7-2(2) limits the duration of the examinations for
discovery:

(2)  Unless the court otherwise orders, the examinations for
discovery, including all examinations under subrules (17), (22) and (24),
conducted under this rule of a party of record, including any such examinations
conducted of a person referred to in subrule (1) (b) who is examined in
relation to that party of record, by any other party of record who is adverse
in interest must not, in total, exceed in duration

(a) 7 hours, or

(b) any greater period to which the person to be examined
consents.

[26]        
Rule 7-2(3) sets
out the factors that must be considered by the court on an application to
extend the examination for discovery period:

(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.

[27]        
Rule 7-2(4)
provides that discovery is oral examination on oath.  Rule 7-2(18) provides:

(18)  Unless the court otherwise orders, a person being
examined for discovery

(a) must answer any question within
his or her knowledge or means of knowledge regarding any matter, not
privileged, relating to a matter in question in the action, and

(b) is
compellable to give the names and addresses of all persons who reasonably might
be expected to have knowledge relating to any matter in question in the action.

[28]        
Rule 7-2(23) and
(24) call for responses to questions in writing where a person is required to
inform himself or herself of answers to questions and provide application may
be made to continue the examination for discovery, even where that is the case.

[29]        
Rule 7-2(25) is
particularly applicable in the circumstances of this case.  It provides:

(25)  If a person under examination objects to answering a
question put to him or her, the question and the objection must be taken down
by the official reporter and the court may

(a) decide the validity of the
objection, and

(b) order the person to submit to further examination and
set a maximum duration for that further examination.

[30]        
This is, therefore,
an application under Rule 7-2(25) to determine the validity of the objection
made by plaintiff’s counsel to questions on examination for discovery.  The
plaintiff is otherwise required to answer questions put at examination for
discovery by Rule 7-2(18).  It is entirely appropriate in the circumstances of
this case to require plaintiff’s counsel to state the basis for objection to
the questions posed and to then permit the examining party to respond to the
objection stated.

[31]        
In the course of
submissions, Mr. Markham-Zantvoort stated that by requiring him to
describe the basis for his objections before hearing from defence counsel, this
court demonstrated a bias on the application.  When offered an opportunity to
withdraw that remark or clarify it, he repeated it.  That apparent suggestion
of the lack of impartiality on the part of the court is improper conduct on the
part of counsel.

[32]        
The scope of
examination for discovery has recently been canvassed by this court in Kendall
v. Sun Life Assurance Company of Canada, 2010 BCSC 1556; More Marine
Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166; and Day v. Hume, 2009
BCSC 587.  In those cases, the court reiterated the following principles:  the language
of Rule 7-2(18) is identical to the former Rule 27(22) and the scope of
examination for discovery has remained unchanged and is very broad.  Rigid
limitations rigidly applied can destroy the right to a proper examination for
discovery.  Useful or effective cross-examination would be impossible if
counsel could only ask such questions as plainly revealed their purpose.  An
examination for discovery is in the nature of cross-examination.  Counsel for
the party being examined should not interfere except where it is clearly
necessary to resolve ambiguity in a question or to prevent injustice.

[33]        
The time limit
established by Rule 7-2(2) creates a greater obligation on counsel for the
party being examined to avoid unduly objecting or interfering in a way that
wastes the time available.  A largely hands-off approach to examinations for
discovery, except in the clearest of circumstances, is in accord with the
object of the Rules of Court, particularly the newly stated object of
proportionality.  Allowing wide-ranging cross-examination on examination for
discovery is far more cost effective than a practice that encourages objections
which will undoubtedly result in subsequent chambers applications to require
judges or masters to rule on the objections.  It is far more efficient for
counsel for the examinee to raise objections to the admissibility of evidence
at trial rather than on examination for discovery.  Where intervention is
appropriate, the proper conduct of counsel is to state the objection to the
form of a question and the reasons for the objection, but it is not appropriate
to make comments, suggestions or criticism.

Applicable Law

[34]        
Many of the
specific objections in issue are addressed in an article by John Shields and
Howard Shapray published in The Advocate, Vol. 68, pt. 5 (September 2010)
at page 671, referred to by Mr. Markham-Zantvoort in argument.

(a) Relevance

[35]        
Counsel objects to
many questions on the grounds that they are not relevant.  In addressing these
objections, I proceed from the proposition that counsel should have broad
discretion to frame appropriate questions for the examination of the plaintiff,
respecting the principles described in the cases to which I have referred.

(b) Confusion

[36]        
Counsel objects to
many questions on the grounds that he finds them confusing.  In Cominco Ltd.
v. Westinghouse Canada Limited (1979), 11 B.C.L.R. 142 (C.A.), the Court of
Appeal at para. 19 held:

If
a question is difficult to answer, the witness can say so and can be
cross-examined about the difficulty. It is for the witness, not counsel, to
deal with that.  Difficulty in answering does not exclude a whole area. It
excludes specific questions.  No area of fact is closed on the ground that to
enter it would "open the floodgates".

(c) Repetition

[37]        
Counsel objects to
questions he considers repetitive.  As Shields and Shapray note, "asked
and answered" is not an appropriate objection in Canada.  Madam Justice
Boyd in Rec Holdings Co. v. Peat Marwick Thorne Holdings, [1995] B.C.J.
No. 1964 (S.C.), held at para. 9:

It
is trite law that an examination for discovery is in the nature of a
cross-examination.  While there will be situations in which repeating the same
allowable question over and over on cross-examination may amount to
intimidation, the Court must be slow to interfere where that tactic is used
relatively sparingly and particularly in circumstances in which there are good
grounds for the cross-examiner’s belief the witness may be falsifying his
evidence.

(d) Inadequate Foundation

[38]        
Shields and
Shapray say there is no requirement that a foundation be laid for a question. 
In Cominco, the court noted at para. 632:

The
objection is that no foundation was laid for the questions.  That suggestion
does not appear to have been made at the time and I think that, if one objects,
one should say why.  Presuming that this objection can now be made, I merely
say that I know of no requirement that a foundation be laid.  None was cited to
us.  Those questions should have been answered by the witness without interruption
by counsel.

(e) Compound Questions

[39]        
Counsel routinely
objected to questions that he considered to be compounded questions.  Shields
and Shapray say, properly in my view, that objection to the form of question
should be used sparingly.

(f) Privelege

[40]        
Counsel objected, at
the most recent examination, when the plaintiff was asked what he alleges or
says in relation to the claim.  The plaintiff cannot be asked what counsel told
him about his claim or how the case will be framed at trial.  He may not be
asked how much he will say he has lost, if the answer requires disclosure of an
opinion obtained by the solicitor.  Question 1152 on the examination for
discovery seems to seek such information.

[41]        
The witness cannot
be asked to disclose how the facts having assembled, weighed or analysed by
counsel.  That is what was offensive in the general requests considered by the
court in Triathlon Ltd. v. Kirkpatrick, 2006 BCSC 890.  The questions
asked in that case were held to offend the description of the privilege
afforded to the solicitor’s brief in Hodgkinson v. Simms (1988), 33
B.C.L.R. (2d) 129 (C.A.).  It was the manner of getting at the work product by
asking what facts had been assembled by counsel or what facts would be relied
upon, rather than by asking about specific facts, that was objectionable.  The
manner in which facts have been marshalled is a question going to trial
strategy.  It is for that reason that I expect that counsel have included in
the book of authorities Blue Line Hockey Acquisition Co., Inc. v. Orca Bay
Hockey Limited Partnership, 2007 BCSC 143, although no express reference
was made to it in oral submissions.  In that case, questions were held to be objectionable
because of what was being sought: conclusions reached by counsel, rather than
the evidence of the witness.

[42]        
Questions that
intrude upon privilege are generally objectionable.  That is expressly
reflected in Rule 7-2(18).  Care should be taken to protect the
solicitor/client relationship.

Analysis

(a) Relevance

[43]        
The objections taken
by Mr. Markham-Zantvoort appear to have been founded upon an excessively
narrow conception of relevance.  In some instances, that narrow view almost
prevented the discovery of relevant evidence.  At question 227, counsel
objected to a question with respect to the plaintiff’s weight as irrelevant. 
Two questions later, it was clear that the plaintiff himself would say his
weight had increased as a result of his injury.  Continued questioning resulted
in the disclosure of obviously relevant evidence.

[44]        
Similarly at the
first examination for discovery, counsel objected to question 195, whether the
plaintiff felt dizzy when he played soccer in 2008.  That question has
subsequently been answered in appendix A with information that may be of
relevance at trial.

[45]        
I reject counsel’s
submission that while prior or subsequent injuries are relevant, the mechanism
of such injuries is not.  Similarly, given the allegations in the pleading of
headaches, post-traumatic stress disorder and loss of income earning capacity,
I reject the submission that the defendant ought not to be able to examine the
plaintiff on the conditions described in his family physician’s letter of 2002
and 2004.  These may come to nothing, but that is not the test on addressing the
question of relevance.

(b) Confusion

[46]        
Mr. Markham-Zantvoort
regularly objected on the basis that he, rather than his client, did not
understand the question posed.  I give some examples.  At question 15:

Q         Did you have any
place on your body that you were from time to time experiencing pain?

That question is inelegant, but it is certainly not
difficult to understand.

[47]        
Question 84:

Q         On
impact, what happened to your car?

Mr. Markham-Zantvoort objected to that question on
the basis that it was unclear.

[48]        
Question 203:

Q         Prior
to the accident, did you know that it was coming?

Similarly, Mr. Markham-Zantvoort objected.

[49]        
Question 852:

Q         Are
you currently a registered student at any educational institution?

Mr. Markham-Zantvoort objected on the basis that that
question was confusing.

[50]        
Counsel objects to
each of these questions, and others, on the basis that he did not understand
them.  Bearing in mind the objective of the civil rules, the efficient
resolution of disputes, counsel should not object to questions on the basis
that they might be better stated.  If there is no real confusion, it does not
serve anyone’s interest to do so.

(c) Repetition

[51]        
At the second
examination for discovery, there were objections to a number of questions on
the basis that they had been asked and answered.  For example, questions 708,
738, 770, 782, 787, 849 and 914.  This objection is generally untenable.

(d) Compound Questions

[52]        
The transcript
records objections to two types of questions on the basis that their form is
improper.  First, as often occurs in examinations for discovery, statements
were put to the plaintiff.  As an example, at question 70 and 71, counsel asks,
about the location of the accident:

Q         And you were on Canada Way?

A          Yes.

Q         You
had just crossed the intersection of Imperial?

[53]        
Mr. Markham-Zantvoort
then interjects:

Is
that a question, counsel?

[54]        
In response, Mr. Hinton
rephrases the question as question 72:

Q         Had
you just crossed the intersection of Imperial?

[55]        
The interjection is time consuming, unnecessary and petulant.

[56]        
Mr. Markham-Zantvoort
frequently objected to questions on the basis that they were compound questions
by asking:  which question would you like him to answer, counsel?  Such
questions include question 65:

Q         At the time of
your impact, was your car stopped, were you moving forward, were you moving
backwards, do you remember what you were doing?

[57]        
The question is a
compound question.  It would not be objectionable, however, if the witness had
been asked:  do you remember if you were moving in any direction at the time of
the accident?  To object to the question as it was posed is time consuming and
unproductive.

[58]        
Another example is
question 167:

Q         Can you tell me how far your vehicle moved or
if it was moved on impact?

Mr. Markham-Zantvoort: Which question would you like him to
answer, counsel?

[59]        
Another example is
question 193:

Q         Was it a matter of days, weeks or months?

Mr. Markham-Zantvoort: Which
question would you like him to answer, counsel?

[60]        
Such objections
continued throughout the second examination for discovery at question 640, 714
and 730.  To object to these questions as Mr. Markham-Zantvoort did is
obstructive, time consuming and unproductive.

(e) Privilege

[61]        
Objection was
taken by Mr. Fahey to certain questions on the basis that the defendant
was seeking the plaintiff’s damages calculation or a description of allegations
or pleas advanced, matters that might have been determined with the assistance
of counsel and advisors and not the proper subject for examination for
discovery.  In my view, most of these questions are not objectionable.  They
sought the plaintiff’s own appreciation of the effects of his injury.  They may
be answered without disclosing information assembled by counsel.

[62]        
As Shields and
Shapray note, the judgment in Day v. Hume suggests that counsel may ask
open-ended questions of a party, such as: on what do you rely in making that
allegation?  Some of the questions to which Mr. Fahey objected were no
doubt questions that had been addressed in confidence by counsel and experts,
but that fact alone does not make the questions improper or overly broad.  Most
of Mr. Fahey’s objections were inappropriate and in my view most of the
questions to which he objected may be asked and answered.

[63]        
There is one
question touching upon privilege, question 1271, which is objectionable because
if answered, it would have the effect of giving a glimpse into counsel’s brief.

Judgment

[64]        
Having applied the
principles described above to the specific questions before me, I conclude that
the following questions described in schedule B are not objectionable and must
be answered.

[65]        
From the first
examination for discovery questions 10, 11, 14, 24, 25, 26 and 27; 29, 41, 61,
81, 83, 84, 105, 106, 109, 124, 195, 196, 224, 225, 335, 331, 342, 346, 374,
381, 390, 490, 515, 592, 594, 595, 599, 600, 601 and 602.

[66]        
From the second
examination for discovery, 629, 636, 638, 724, 746, 764, 864, 876, 869, 871,
872, 873, 912 and 913.

[67]        
From the last
examination for discovery, 1092, 1093, 1146, 1147, 1149, 1151, 1154, 1155,
1156, 1157, 1226 and 1296.

Estoppel

[68]        
No authority was
cited to me in support of the plaintiff’s position that the filing of the
certificate of trial should preclude the defendant from conducting further
discoveries.  In Ontario, there is an express provision that no measures can be
taken without leave after the filing of the trial certificate.  In not
incorporating such a strict rule here, it seems to me that a choice has been
made to leave it in the discretion of the court whether to permit further
discovery or other interlocutory proceedings after a trial certificate has been
filed and in general to establish no bar to such measures.

[69]        
I have considered
the Ontario cases of York Condominium Corp. No. 202 v. Kuhl (1980), 17
C.P.C. 124 (Ont. H.C.J.), and Hill v. Ortho Pharmaceutical (Canada) Ltd.
(1992), 11 C.P.C. (3d) 236 (Ont. Gen. Div.), and bear in mind the caution
expressed in the latter case that the profession must be reminded that a
certificate of readiness means what it says.  I have also considered the
decision of the Saskatchewan Court of Queen’s Bench in Labrecque v. Picture
Perfect Inc., 2000 SKQB 201. 

[70]        
Given that in this
case, the trial had been adjourned after the issuance of the certificate, given
that further discovery will not postpone the trial and given that even the
plaintiff did not raise this objection until the hearing of the motion and
after the third discovery following the issuance of the certificate, I conclude
that I should grant leave to conduct further examinations for discovery.  More
injustice would be done by depriving the defendant of an essential preparatory
step than might be occasioned by the continuation of the discovery.

Time Limits

[71]        
I reject the
argument that leave should not be granted to extend the time allowed for
discoveries, so as to permit the defendant to finish discoveries in this case. 
In my opinion, there has been significant obstruction, by plaintiff’s counsel,
of the efficient completion of discoveries.  This is a case in which the
exercise of the discretion afforded by Rule 7-2(3) is amply justified.  The
defendant will have leave to conduct another day of discoveries if necessary.

Scope of Discovery

[72]        
Plaintiff’s
counsel suggests that the scope of discovery should be limited to asking those
specific questions asked and objected to.  To so hold would be to require
counsel to put on the record at examination for discovery all possible
follow-up questions to those the plaintiff has refused to answer.  Doing so
would further prolong the time and expense spent on unwarranted objections.  I
reject that argument.  The obstacles posed to effective discovery in this case
were so numerous that there should be no limitation placed on the matters that
the defendant’s counsel may canvass on the continuation of the examination for
discovery.

Prohibition of Discussion

[73]        
The defendant
seeks an order prohibiting the plaintiff from discussing the unanswered
questions with counsel before the continuation and completion of examination
for discovery.  Madam Justice Boyd in Rec Holdings Co. Ltd. v. Thorne,
followed a decision of Mr. Justice Wong in Fraser River Pile &
Dredge Ltd. v. Can-Dive Services Ltd. (1992), 72 B.C.L.R. (2d) 240 (S.C.),
in holding at para. 17 that:

…
where counsel has discontinued his discovery of a party in order to obtain a
Court ruling concerning the parameters of the discovery, it is appropriate for
the Court to order the witness’s counsel to refrain from discussing with the
witness the evidence which the witness intends to give in relation to the line
of questioning underway.

[74]        
It was the
submission of counsel that the parties ought to be put in the same position
they would have been in but for counsel’s interruptions and the discontinuance
of the discovery.  The court held that counsel ought not to be entitled to
discuss certain events in question with his client prior to the resumption of
the examination for discovery.

[75]        
Similarly in Day
v. Hume, Madam Justice Smith granted an order expressed at paras. 26-27 in
these terms:

I direct that interventions at the continuation of the
examination for discovery of the plaintiff will be limited to those that are
clearly necessary and consonant with the principles set out in the authorities
I have referred to and with the nature of an examination for discovery as a
cross-examination.

Further, I direct that counsel
for the plaintiff will not discuss with the plaintiff any questions touching on
matters which have been put to the plaintiff at the examination for discovery
on November 19, 2008, between now and the completion of the plaintiff’s
examination for discovery.

[76]        
Contrary to the
submissions of counsel for the plaintiff, there is good authority for the order
sought.  The making of the order is not dependent upon proof of misconduct on
the part of counsel.  It is simply a consequence of objecting to questions
properly put at the examination for discovery.  I find that the orders made by
Madam Justice Smith in Day v. Hume are appropriate in the case before me
and will make such an order in relation to the enumerated questions.

[77]        
I will hear from counsel
with respect to costs.

[SUBMISSIONS]

[78]        
I direct that
interventions of the continuation of the examination for discovery of the
plaintiff will be limited to those that are clearly necessary and consonant
with the principles set out in the authorities to which I have referred.  The nature
of examination for discovery is a cross-examination.  I further direct that
counsel for the plaintiff will not discuss with the plaintiff any questions
touching on matters which have been put to the plaintiff at the examinations
for discovery to date and to which objection has been made.

[SUBMISSIONS]

[79]        
Mr. Fahey,
there should be no suggestion that you cannot otherwise have the normal contact
that you would have with your client in preparation for trial or preparation
for examination for discovery generally.  I am simply directing that there be
no discussion of the questions that have not been answered to which objection
has been made.

[FURTHER SUBMISSIONS]

[80]        
In my view,
although seven hours was sought, given the lengthy examination for discovery
that has already been conducted, 4.5 hours should be sufficient to canvass the
objections and questions arising out of them.

[SUBMISSIONS AS TO COSTS]

[81]        
In my view, it
cannot said that there was mixed success on this application.  It seems to me
highly unlikely that the parties would have had to attend in chambers and speak
to a contested application if only the limited objections which have been held
to be appropriate had been made at the examination for discovery.  Conduct of
plaintiff’s counsel has obstructed appropriate examination for discovery and
significantly and unnecessarily increased the costs of this litigation.

[82]        
The defendants
will have costs of the full day in chambers yesterday, the time spent in
chambers previously attempting to get the case on for hearing and costs of the
further day of examination for discovery in any event of the cause.

“P. Willcock J.”

The
Honourable Mr. Justice P. Willcock