Leave Granted to Examine Non-parties in Favour of Full Discovery

by Katie Di Tomaso | Aug 14, 2018

It is an era of broad disclosure for civil litigants.  In Kissoon v. Aviva Insurance Company of Canada[1], Mr. Justice C. De Sa J. demonstrated this by granting leave for examination of occupants of a car involved in a motor vehicle accident as non-parties.

The motion stemmed from three separate actions which were commenced by three separate plaintiffs all of whom alleged injuries arising from the same motor vehicle accident.  All plaintiffs were represented by the same counsel. It was unclear to De Sa J. why the actions were structured in this manner.  The actions were subject to a prior Order of Sosna J. ordering the actions to be tried together or one after the other, as opposed to being consolidated.  Common discoveries were not ordered.

Examination for discovery was conducted separately in each action and refusals were made.  The refusals were comprised of questions directed to a plaintiff about the impact the accident had on the other occupants of the vehicle (the other plaintiffs). More specifically, counsel for Aviva, the statutory third party in each action, asked each plaintiff what their observations were of the other occupants during the course of the accident and thereafter. The questions were directed at eliciting evidence pertaining to damages and for the purpose of assessing the credibility of the other plaintiffs in the related proceedings.

Aviva moved in each action to have the refusals answered.  The plaintiffs opposed all motions on the basis that the questions were not relevant to the particular proceeding in which they were being raised.  Sosna J. agreed but suggested rule 31.10 governing examination of non-parties was available for the third party.

The statutory third party paid heed to Sosna J.’s remarks and brought the within motions before De Sa J.  The central issue on the motion was whether Aviva should be permitted to examine a plaintiff as a non-party regarding his observations of the other occupants of the vehicle.

In granting the motion for discovery of the plaintiffs (as non-parties) pursuant to rule 31.10, De Sa J. stated:

a court should not be too ready to refuse a party access to discovery of a non-party where the non-party is unwilling to cooperate in providing evidence that is not otherwise available. The requirement for leave is directed at avoiding subjecting a non-party to the discovery process unnecessarily.

De Sa J. went on to explain the rationale behind permitting the discovery:

Fulsome discovery allows parties to know the case available to them and to meaningfully understand the case against them. Discovery allows parties to properly prepare for trial, but it also allows parties to narrow the live issues requiring trial.  In many instances, discovery of relevant witnesses in advance of the trial may obviate the need for a trial altogether. As such, unduly limiting discovery may force parties to unnecessarily assume the expense of a trial. The approach to be taken to the discovery of non-parties is directed at the efficient use of resources, not at increasing expense and delay.

Due to the Order requiring the matters tried together or one after another, De Sa J. points out that technically there is a “right” to discover the plaintiffs as parties on any issue relevant to the action.

De Sa J. found the questions posed by Aviva’s counsel were clearly relevant to the broader issues to be raised at trial. The questions deal directly with the question of damages. The other occupants of the vehicle would be well positioned to comment on: (1) the nature of the injuries sustained by the other occupants; (2) the location of where the other occupants were sitting at the time of the accident; and (3) the true extent of the injuries of the occupants. The evidence obtained would also assist in assessing the credibility of the plaintiffs’ evidence at trial. The degree that the plaintiff’s characterization of events differed from each other could impact on the degree to which their evidence was believed. This went to damages and was not solely relevant to collateral issues that dealt purely with “credibility”.

De Sa J. disapproved of the plaintiffs’ decision to structure the proceeding in this way, and then take a narrow approach to relevance, thereby frustrating the discovery process.  In addition to granting the motion, His Honour awarded costs in the amount of $7,000.

The two key take-aways from the decision are:

  1. In the situation where: (1) multiple plaintiffs commence separate actions arising from the same accident, (2) there is an Order for trial together and (3) absent any consolidation order, the defendants are entitled to examine the plaintiffs – as non-parties – in one another’s actions on relevant issues, pursuant to rule 31.10.
  2. From a procedural point, in structuring these actions, De Sa J. recommends that the matters should have been consolidated or at least had an order for common discoveries from the outset. This can be addressed by the defendants on a motion.

[1] 2018 ONSC 2167 (CanLII), <http://canlii.ca/t/hrbqp>