November 20, 2013

Examinations for discovery can afford an excellent opportunity to determine the strength of the opposing party’s position. The discovery process also provides a chance to see a lawyer’s oral advocacy skills in action. But sometimes, a lawyer’s behaviour has the effect of disrupting the discovery process.

In Tondera v. Vukadinovic, 2013 ONSC 6888 (CANLii), defence counsel  brought a motion for directions concerning the conduct of plaintiff’s counsel during the examination for discovery of the plaintiff.  The defendant sought an order requiring the plaintiff to re-attend at the examination for discovery at her own expense, along with the costs thrown away.

What brought the parties to court? Defence counsel alleged that plaintiff’s counsel obstructed the three-hour examination of her client, coached her client, told defence counsel what types of questions could be asked, interrupted defence counsel repeatedly and answered questions on behalf of her client. In the defendant’s submission, the examination was rendered futile due to plaintiff’s counsel’s behaviour, and as a result defence counsel stopped the examination (after some three hours).

Plaintiff’s counsel denied being obstructionist, and instead explained that she was simply trying to protect her client. She claimed that because her client kept saying “I Guess” or “I don’t remember” she was merely following up on her client’s evidence by asking her client “do you know?” to make certain the transcript was clear. Importantly, this was also plaintiff’s counsel first examination for discovery and she did not normally conduct litigation.

Master Brott reviewed the principles for proper conduct of an examination which were set out by Master Dash in Madonis v. Dezotti 2010 ONSC 2180 (CanLII), as follows:

  1. An examining party has a right to ask questions at an examination for discovery without unnecessary interruptions.
  2. The lawyer for a party being examined may interrupt the proceeding for the purpose of objecting to an improper question, placing the objection on the record and directing the party, either to not answer or, to answer under objection.
  3. The lawyer for the party being examined may interrupt the examiner if necessary to ensure that the witness and counsel understand the question.
  4. It is the party who is being examined and not his other lawyer.
  5. There is often a spirit of co-operation at an examination for discovery where counsel allow some latitude and permit the lawyer for the witness to offer assistance.
  6. It is the duty of the party and not the lawyer to correct an answer given even if the answer given by the party is wrong.
  7. Counsel must not communicate with his or her client during the examination except on the record and even then, only sparingly so as not to interfere with the flow of the examination.

In this case, Master Brott found that plaintiff’s counsel was not being obstructionist. Rather, her behavior was “obtuse, but with good intention – that being to protect her client.” In Master Brott’s view, the source of plaintiff’s counsel’s behavior was her lack of familiarity with the litigation process.  Master Brott referred to the Principles of Civility as providing lawyers with some guidance in litigation which states that “counsel, during examinations for discovery, should at all times conduct themselves as if a Judge were present”. Master Brott did not believe that the plaintiff’s behaviour offended this principle. She did note that defence counsel had taken a particularly “hard line” approach in dealing with plaintiff’s counsel.

Having found that the behaviour was not improper, Master Brott ordered each party to bear their own expense for costs thrown away and for costs for re-attendance at examination, as well as the costs of the motion. Perhaps anticipating future problems, she advised the parties that she would be available during the re-attendance at examination by phone to rule on any disputes in “real time” if required.

Happy (civil!) litigating.