In my general understanding as a non-lawyer, a counsel, while representing the best interests of his/her client, objects to requests made by the opposing counsel, whenever the lawyer sees an argument and/or question raised as unreasonable, not case specific or not at all pertinent to the case, or for that matter, answering a question is not required by law and may prejudice the client's position.
There are established Rules of Civil Procedure in Canada that provides general guidelines for the parties in litigation. These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits [see R.R.O. 1990, Reg. 194, r. 1.04 (1)].
It happens quite often that the opposing counsel doesn’t agree on the interpretation of a rule, and/or object to questions raised and motions are brought to reach a conclusion. A judge may determine an objection to a question, or a line of questions, made at discovery [Nova Scotia Civil Procedure Rules Section 18.17 (7)].
In Delano v. Gendron, 2019, a recent interesting decision released by the Nova Scotia Court of Appeal, the interpretation of these rules with regards to the relevance of an objection raised by the defence counsel was discussed, when the defence counsel objected on behalf of his client, at discovery of a multi vehicle accident case, to a seemingly reasonable and legitimate request made by the opposing counsel, for drawing a sketch to properly explain the scene of the accident.
The facts of the case are as under.
In 2014, Mr. Hurlburt was involved in a three-vehicle accident. Ms. Delano and Ms. Gendron were the other drivers. The respondent/defendant, Mr. Hurlburt, during a discovery examination via a video link, was asked to sketch an intersection. His lawyer objected. The lawyer stated:
No, I’m not going to let him do that. If you have a plan, that’s to scale, then he can mark on it.
He went on to say that he had “no idea of his [Mr. Hurlburt’s] ability to recreate a drawing here and I just don’t want him to do it”.
THE MOTION’S JUDGE DECISION
The motions judge, while acknowledging that asking witnesses on discovery examination to produce a sketch or mark a map is “a widespread practice” and that the Rules “must be interpreted broadly and liberally”, stated:
I conclude that the Rules require a litigant to be fully prepared and informed for a discovery examination and to answer all relevant, non-privileged questions. I further conclude that there is no authority in Rule 18 requiring a litigant to do anything more than answer those questions. There is no obligation to create documents. A deponent is obligated to give evidence but not make evidence.
Ms. Delano Appealed.
Was the motions judge correct in her interpretation of Civil Procedure Rule 18.13(1), that states:
A witness at a discovery must answer every question that asks for relevant evidence or information that is likely to lead to relevant evidence.
POSITION OF THE PARTIES
It’s a generally accepted standard to ask to draw sketches in a MVAs for better understanding and the objection is unreasonable. The motions judge erred in principle by taking an overly restrictive and technical approach in her interpretation of the Rule – Rule 18.13(1) – governing the request made of Mr. Hurlburt. The Appellant also argues that upholding Mr. Beckett’s objection produced a patent injustice.
It is redundant to oblige a witness on discovery to make a sketch or mark on a map after giving a verbal answer.
The motion judge erred in restricting her interpretation of the word “answer” under Civil Procedure Rule 18.13 (1), to only verbal answers. This would frustrate the goal of the discovery process. Asking a witness at a discovery examination to supplement an answer with a sketch or a marking is wholly consistent with what the Rules.
Derrick J.A confirmed that whether Mr. Hurlburt felt he was able to provide a sketch or not is a threshold question – can the witness provide a sketch or make a mark? If the witness says they cannot, then they have answered the question. If they say they can, I find that, applying the proper interpretation of Rule 18.13(1), they are obliged to do so if asked
Allowing the appeal, Derrick J.A., writing for the court of appeal stated:
I am satisfied that supplementing a verbal answer with a sketch or marking is well within the scope of what Rule 18.13(1) requires. It may clarify the verbal description, and if it does, it will benefit the parties’ understanding, prior to trial, of the case being litigated, accomplishing the critical objective of discovery examination.
There is an interesting thought about the issue of being a “threshold question”, as well as the respondent’s ability to draw a sketch. In my opinion, had the respondent said that he cannot earmark the incident spot and is not able to draw a sketch at all, then he may not have been obliged to do so. The fact that he did not deny the ability of drawing the sketch, did not ever contend that he cannot earmark the spot because of no memory of the incident, but his counsel objected that he will not draw the sketch (even when, presumably, he can draw one), created this whole situation where it was presumed that the counsel’s objection was not reasonable as the objection would not be consistent with the rules and would defy the purpose of the discovery examination.