IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20121205

Docket: M090796

Registry:
Vancouver

Between:

Sharon
Dann also known as Sharon Tessier

Plaintiff

And

Kulwinder
Singh Dhaliwal, the City of Abbotsford,
Her Majesty the Queen in Right of the Province of
British Columbia, and Emil Anderson Maintenance Co. Ltd.
and ISL Engineering and Land Services Ltd.

Defendants

And

Emil
Anderson Maintenance Co. Ltd. and
Her Majesty the Queen in Right of the Province of
British Columbia as represented by the Ministry of
Transportation and Infrastructure and ISL Engineering
and Land Services Ltd.

Third
Parties

– and –

Docket: M115401

Registry:
Vancouver

Between:

Jorin
Dann-Mills, by his litigation guardian,
Robbin Williams

Plaintiff

And

Sharon Tessier,
Daniel Mills, Kulwinder Singh Dhaliwal,
the City of Abbotsford, Her Majesty the Queen in Right
of the Province of British Columbia, Emil Anderson
Maintenance Co. Ltd., and ISL Engineering and Land
Services Ltd.

Defendants

And

Sharon
Tessier, Daniel Mills, Kulwinder Singh Dhaliwal,
the City of Abbotsford, Emil Anderson Maintenance Co. Ltd.,
Her Majesty the Queenin Right of the Province of British Columbia as
represented by theMinistry of Transportation and Infrastructure and
ISL Engineering and Land Services Ltd.

Third
Parties

Before:
The Honourable Mr. Justice Goepel

Reasons for Judgment

INTRODUCTION

[1]            
These applications concern the right of a plaintiff to examine the
corporate representative of its choosing in circumstances in which two actions
have been commenced arising out of the same motor vehicle accident and the
respective plaintiffs are represented by separate counsel. The defendants on
this application submit that they are entitled to put forward the same
individual in each action. The plaintiffs submit that they should be free to
choose in each action the corporate representative they wish to examine.

BACKGROUND

[2]            
On August 14, 2008, Sharon Dann, also known as Sharon Tessier (“Ms. Tessier”)
and her infant son, Jorin Dann-Mills (“Jorin”) were catastrophically injured in
a motor vehicle accident which occurred at the intersection of Mount Lehman
Road and Simpson Road in Abbotsford, B.C. (the “Intersection”). Ms. Tessier
was travelling westbound on Simpson Road and attempted to turn left to proceed
south on Mount Lehman Road when her vehicle was struck by a north bound tractor
trailer unit operated by the defendant, Kulwinder Singh Dhaliwal. At the time
of the accident, Jorin was six months old.

[3]            
Ms. Tessier and Jorin have each commenced proceedings arising from
the accident. Both claim against Mr. Dhaliwal, the City of Abbotsford
(“Abbotsford”), Her Majesty the Queen in Right of the Province of British
Columbia (the “Province”), Emil Anderson Maintenance Co. Ltd. (“EAM”) and ISL
Engineering and Land Services Ltd. (“ISL”). In Jorin’s action, he claims as
well against Ms. Tessier and his father, Daniel Mills. Most of the
defendants have filed third party notices against each other.

[4]            
The claims against Abbotsford, the Province and ISL are focussed on the
design of the Intersection and those defendants’ alleged failure to take
appropriate steps to rectify the dangerous condition represented by the Intersection.
The claim against EAM is focussed on that defendant’s alleged failure with
regard to the care and maintenance of the roads and vegetation in the area of
the Intersection. There are no material differences in the claims that Jorin
and Ms. Tessier have brought against the common defendants they have each
sued.

[5]            
On October 31, 2011, an order was made by consent that the two actions
be tried at the same time. On July 20, 2012, Mr. Justice Masuhara ordered by
consent of all parties in both actions:

This Court orders that the
evidence before the Court on liability issues in this action and in Supreme
Court of British Columbia Vancouver Registry, Action No. M090796, Dann v.
Dhaliwal et al, will be evidence in both actions for the purpose of all trial
and pre-trial procedures.

THE APPLICATIONS

[6]            
The present applications concern the discovery of representatives of EAM
and the Province. With regard to the discovery of a representative of EAM, Ms. Tessier
and Jorin, each seek the right to examine a separate representative. EAM is not
prepared to allow the plaintiffs to examine separate representatives. To date, it
has insisted that not only do the defendants not have the right to choose
separate representatives, but that the examinations should take place on the
same day.

[7]            
 With regard to the Province, Ms. Tessier has examined Patrick
Livolsi, the Regional Director of the South Coast Region for the Ministry of Transportation.
In the course of that discovery Mr. Livolsi disclosed that Mr. Les
Gilburg, the Area Manager, was the party responsible for the Intersection.
Mr. Livolsi was able to answer questions  concerning Mr. Gilburg’s knowledge.
Ms. Tessier does not suggest that her examination was in any way
inadequate.

[8]            
Jorin now seeks to examine Mr. Gilburg. The Province is prepared to
allow Jorin to examine Mr. Livolsi, but will not voluntarily produce Mr. Gilburg.

[9]            
I should note that counsel for Ms. Tessier and Jorin have conducted
examinations of representatives of Abbotsford and ISL. Abbotsford produced one
representative who was initially discovered by counsel for Ms. Tessier and
some months later by counsel for Jorin. ISL allowed Ms. Tessier and Jorin
to examine separate representatives.

THE RULES

[10]        
Rule 7-2 governs examinations for discovery. The relevant sections for
the purpose of this application are:

(1) Subject to subrule (2), each party of record to an action
must

(a) make himself or herself
available, or

(b) if any of subrules (5) to (10)
apply, make a person referred to in that subrule available,

for examinations for discovery by the parties of record to
the action who are adverse in interest to the party subject to examination.

…

(5) Unless the court otherwise orders, if a party to be
examined for discovery is not an individual,

(a) the examining party may examine
one representative of the party to be examined,

(b) the party to be examined must
nominate as its representative an individual, who is knowledgeable concerning
the matters in question in the action, to be examined on behalf of that party,
and

(c) the examining party may examine

(i) the representative nominated
under paragraph (b), or

(ii) any other person the examining
party considers appropriate and who is or has been a director, officer,
employee, agent or external auditor of the party to be examined.

…

(22) In order to comply with
subrule (18) or (19), a person being examined for discovery may be required to
inform himself or herself and the examination may be adjourned for that
purpose.

[11]        
Rule 7-2 is similar but not identical to the old Rule 27. The material
parts of Rule 27 read:

(3)  A party to an action may examine for discovery
any party adverse in interest.

(4)  A person who is or has been a director,
officer, employee, agent or external auditor of a party may be examined for
discovery, but that party may apply to the court at any time before the
examination for an order requiring the examining party to examine instead of
that person some other person who is or has been a director, officer, employee,
agent or external auditor of the party.

(5)  (a) A party who has examined for
discovery any party adverse in interest shall not examine an employee or agent
of that adverse party without leave of the court.

(b) A party who has examined an employee or agent
of another party shall not examine that other party without leave of the court.

(c) A party who has examined a person referred to
in subrule (4) shall not   examine any other person referred to in that
subrule without leave of the court.

(6)  Where a corporation is a party, it shall
disclose the name of a person to be examined who is knowledgeable concerning
the matters in question in the action.

THE AUTHORITIES

[12]        
In Fraser, Horn & Griffin Conduct of Civil Litigation in British
Columbia, looseleaf 2d ed.(Ontario: Lexis Nexis Canada Inc., 2007), the
authors, at para. 18.1, describe the role of examinations for discovery as
follows:

The purpose of an examination for
discovery is to prove the case of the examining party or to disprove the case
of the party examined. It is to enable a party to know what is the case he is
to be called upon to meet and to enable him to extract from his opponent
admissions which may dispense with more formal proof at the hearing.

[13]        
The purpose of an examination for discovery is not to give an opposing
party opportunity to examine all the witnesses adverse in interest or who may
have knowledge touching upon one of the principle issues in the case: Lord
v. Royal Columbian Hospital (1981), 43 B.C.L.R. 147 (C.A.).

[14]         
The procedure to be followed when a party sought to examine more
than one corporate representative was the subject of several decisions under Rule
27. In Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited
Partnership, 2007 BCSC 577 at para. 36, Wedge J. held that the court
had jurisdiction to make orders designed to meet the overall objectives of Rule
27 and that granting multiple corporate plaintiffs or defendants the right to
examine multiple officers of their choice would not achieve those objectives.

[15]        
In Nesbitt v. Midland Walwyn Capital Inc. (1994), 90 B.C.L.R.
(2d) 231, 114 D.L.R. (4th) 348 (S.C.) [Nesbitt], four plaintiffs, each
represented by the same solicitor, sought an order that they each had an
independent right to examine for discovery an individual representative of the
corporate defendant. The defendant argued that the plaintiffs under the rules
should be treated as a single party adverse in interest with the right to
examine only one representative of their choice. Hutchinson J. concluded that
the plaintiffs were entitled to examine but one representative.

[16]        
In the course of his reasons Hutchinson J. noted that a corporate
officer, who thoroughly informs himself or herself on the corporation’s
activities, should be able to respond to all concerns. He explained that in the
exceptional case in which an officer is unable to adequately respond, the
plaintiff is entitled to seek in application of a second representative. He
noted that if the defendant in the case before him was a natural person there
would be no difficulty to be resolved.

[17]        
At para. 15, he noted that if the court determined that every
individual has the automatic right to examine an officer of his or her choice,
there would be potential for chaos and confusion in the proceedings and the
corporate defendant might suffer hardship. The interpretation which allows all
plaintiffs and individuals an opportunity to examine one officer of the
corporate defendant would appear to fulfill the purpose of discovery.

[18]        
At para. 16, he said:

The fact the defendant is a
corporation, and not a natural person, should not, it seems to me, radically
alter the nature and purpose of an examination for discovery.

[19]        
He concluded his analysis at para. 19 where he said:

Limits placed upon examinations
for discovery of corporate defendants, such as those set out within Rule 27(5),
exist to ensure the proper utilization of this pre-trial process. Granting
multiple plaintiffs an automatic right to examine officers of their choice
would, I think, effectively circumvent these limits and permit parties to
achieve a result not intended by the makers of the Rules. In order to meet the
overall objective of Rule 27, subrule (3) should be interpreted to mean that
multiple plaintiffs, whether separately represented or not, have the right to
individually examine only one corporate officer. If, for some exceptional
reason, the officer fails to provide adequate information to one or more of the
plaintiffs, the parties may invoke Rule 27(5) and examine additional corporate
officers, with leave of the court.

[20]        
A similar conclusion was reached in Westfair Foods Ltd. v. Coopers &
Lybrand, [1997] 45 B.C.L.R. (3d) 186 (S.C.). In this case, multiple
defendants represented by the same counsel sought to examine a second corporate
representative of the plaintiff. Master Donaldson, applying the reasoning in Nesbitt,
refused the application. He held that there was no entitlement to examine a
second representative unless there were separate issues between the defendants.

[21]        
In Jordan Development Corp. v. Canaccord Capital Corp., 2005 BCSC
378; 46 B.C.L.R. (4th) 310, there were three separate actions commenced against
the same defendants. The same counsel acted for the plaintiffs in all three
actions. The plaintiffs sought an order that they were entitled to examine in
each action a separate representative of the defendants. Humphries J. denied the
application. She noted that unrestricted discovery of common defendants through
a separate representative in each action was not practical and could lead to
the problem of conflicting admissions in respect of the same subject by
representatives of the same party. She noted that there was nothing gained by
pronouncing general principles and the scope of the examination may be
dependent upon whether or not the underlying facts in respect of each of the
claims is so different that unrestricted discoveries should be allowed.

[22]        
In Executive Inn Inc. v. Pfeffer, 2005 BCSC 1677, 262 D.L.R.
(4th) 135, the corporate plaintiff sued two separate defendants. The defendants
were represented by different counsel. After the first defendant had completed
its examination of a corporate officer, the second defendant applied to examine
a different officer. Garson J., as she then was, allowed the separate
examinations because she found that there was not a commonality of interests
between the defendants. The claims against them were based on different legal
analyses and she found that the scopes of discovery of the two defendants may
be quite different.

[23]        
On this application it was suggested that the decisions made under the
old rules concerning the right to discover multiple representatives are now of
limited usefulness. A similar argument was made to Myers J. in First
Majestic Silver Corp. v. Davila, 2011 BCSC 364. In words I adopt, he rejected
the submissions saying at para. 12:

I see nothing in the new rules
that merits a different approach from that under the previous rules. In
particular, I do not agree with the plaintiffs’ argument that the express right
of a party, under sub-rule 5(c)(ii), to choose a representative of a
corporation to examine creates a meaningful difference. That was the position
of the case law which existed under the previous rules. I do not agree with the
plaintiffs’ submission that the principles enunciated by prior case law are
inapplicable unless specifically incorporated into the new rules. The concerns
expressed in the above-cited cases with respect to permitting multiple
discoveries are equally applicable to the current rules. I also agree with the
premise underlying the cases to which I referred:  the fact that the party
being discovered is a corporation should not make a fundamental difference with
respect to the right of discovery.

DISCUSSION

[24]        
Rule 7-2 does not give a party an unlimited right to discover the
representative of its choice. That right is circumscribed by the opening words
of Rule 7-2(5) that give the court the power to order otherwise. In the case of
multiple parties who have a commonality of interest, they will in the first
instance usually be restricted to examining a single representative of the
corporate party to whom they are adverse in interest. If that representative
fails to provide adequate information, the discovering parties may apply for
leave to exam a second representative.

[25]        
In this case, there is complete commonality of interests between Ms. Tessier
and Jorin. Their claims against the various corporate defendants are virtually
identical. They are not entitled as of right to examine separate
representatives of the corporate defendants.

[26]        
In the case of the Province, Mr. Livolsi has been examined by Ms. Tessier’s
counsel. In the course of that examination, he was asked to inform himself
concerning the knowledge of Mr. Gilburg and apparently was able to do so
without trouble. Given these circumstances, Jorin is not entitled to examine a
separate representative of the Province. Jorin’s application to examine Mr. Gilburg
is dismissed.

[27]        
The examinations of EAM have yet to take place. Counsel for the
plaintiffs are not entitled in the first instance to examine separate
representatives of EAM. If plaintiffs’ counsel cannot agree on the
representative to be examined, the examination will be of the representative
nominated by EAM.

[28]        
It does not follow, however, that the plaintiffs must conduct their
examination at the same time. Each plaintiff cannot be compelled to accept as his
or her own an examination for discovery conducted by counsel for the other
plaintiff. While it may be generally desirable that litigants having the same
general interest should do the discoveries together, the failure of one
litigant to examine on the same day as another does not preclude him from
conducting a later examination: Union Bus Sales Ltd. v. Dueck on Broadway
Limited (1958), 24 W.W.R. 644, 12 D.L.R. (2d) 618 (B.C.S.C.).

[29]        
If the EAM representative is unable to answer questions, or properly
inform himself, it may be open to one of the plaintiffs to seek an examination
of a second representative. At this stage, it is premature to consider such an
application.

SUMMARY

[30]        
Jorin’s application to examine Mr. Gilburg is dismissed. The
applications of Jorin and Ms. Tessier that they be entitled to examine
separate representatives of EAM are dismissed.

[31]        
The Province is entitled to costs in any event of the cause against
Jorin. The parties have had mixed success in the EAM application in that EAM
was insistent that the applications take place at the same time. Costs of the
EAM application will be costs in the cause.

“R.B.T. Goepel J.”

________________________________________

The Honourable Mr. Justice
Richard B.T. Goepel