Recent Ontario case shows best practice is to keep a level head
Exclusive to Canadian HR Reporter from Rudner Law.
We’ve all seen the law shows on TV where the lawyer aggressively declares that a question is inappropriate and then they and their client storm out of the examination (an examination for discovery or a deposition in the US, which is how they refer to them on tv and in the movies).
Does this happen in real life? If you’re a human resources professional, at some point in your career it is possible that you may have to appear to be examined under oath; what do you do when the lawyers are busy yelling and threatening each other?
In reality, almost every examination for discovery includes some “refusals”, where the lawyer for the party being examined objects to a question and instructs their client not to answer. Usually, they say it’s irrelevant, and there may be some discussion between the lawyers about that. Unless they can agree, then the refusal will be noted on the record and the discovery will continue on to the next question.
If the questioning party believes that it was a proper question, they can subsequently bring a motion in court to order the other side to answer. In many cases, they don’t bother, either because the question was not proper or because it’s not worth the time and money to fight over.
Not always so polite
Young lawyers often hear stories about examinations for discovery gone bad, with lawyers shouting, swearing and threatening each other. Some of these are urban legends but some are true. In the recent case of Singh et al v Braich, 2023 ONSC 5053 the plaintiff was being examined for discovery regarding the car crash that formed the basis of the action.
Approximately 50 questions into the examination, the defendant’s counsel asked the plaintiff about an injury to her wrist in 2015. Plaintiff’s counsel interjected and stated that the plaintiff would not answer any questions about injuries more than three years prior to the crash. This was the first (and only) refusal of the day.
The defendant’s counsel stated that he would adjourn the discovery unless the plaintiff’s counsel permitted the plaintiff to answer the question. After some argument, all of which was captured on the record by the court reporter, the defendant’s counsel made good on his threat and left the examination. A total of 22 minutes passed between the first question being asked and the defendant’s counsel leaving the examination.
The defendant’s then brought a motion under Rule 34.14 of the Rules of Civil Procedure to compel the plaintiff to answer the refused question. Rule 34.14 permits counsel to adjourn an examination where the party being examined is being evasive, non-responsive, or verbose. The plaintiff opposed the motion, asserting that the defendant had improperly adjourned the examination. In support of its position, the defendant claimed that the question was relevant and that the plaintiff’s counsel’s refusal to permit the plaintiff to answer interrupted the flow of his examination.
The court reviewed the brief transcript and described the defendant’s counsel’s conduct as “an attempt by a senior lawyer to bully a junior lawyer.” Unfortunately, that is not uncommon. The court ruled against the defendant, finding that the examination had been improperly adjourned, ordered the parties to reschedule and continue the examination, and required the defendant to pay the plaintiff’s costs in the amount of $3,500.00. Interestingly, while the court could order costs against the lawyer personally, it did not.
Takeaways
As we have previously written, the civil legal system only works as long as the parties follow the rules. This extends to carrying out an examination for discovery. A party being examined for discovery may refuse to answer a question and the examining party may ask for the basis of the refusal, which goes on the record. The examining party may later bring a motion to compel the party being examined to provide an answer to the question. Unless the other side changes their position, the court will determine whether the basis for the refusal was sound; if not, the party will be required to provide an answer.
In other words, like almost everything else in the civil litigation process, there is a procedure in place to deal with this situation. Picking a fight and then leaving an examination is not the way in which this type of situation should be addressed.
As a party being examined or observing a discovery, the chances of a situation like this happening are very low, but it does happen. In this case, the plaintiff did what anyone in their situation should do: they ceased answering and did not engage with the defendant’s counsel. Instead, they allowed their counsel to address the matter in line with their duties as a lawyer.
Singh shows that even a standard examination for discovery can go askew and that a party would do well by expecting the unexpected. The best practice is to keep a level head and when in doubt, wait for your counsel’s instructions before continuing.
Geoffrey Lowe is an associate at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].
