Can a plaintiff avoid attending discovery or an independent medical examination due to anxiety or an inability to respond to questions appropriately?
In Lalousis v. Roberts, 2013 ONSC 5897 (S.C.J), the plaintiff sought $4 million in two actions relating to two motor vehicle accidents. She alleged that she could not participate in oral discovery or an IME due to medical reasons, including that she was not able to respond to questions, had poor communication and attention, and discovery would increase her anxiety and depression. She sought to avoid the discovery process or have her husband act as a substitute.
Master Muir dismissed the motion. A party has a prima facie right to a full and complete discovery of an adverse party, which includes oral examination and may include a medical examination. The threshold to limit a party's right to discovery is a high one and should be ordered only in the rarest of cases. In the circumstances, an examination for discovery might be unproductive as she may not provide responsive answer, and it could cause anxiety for the plaintiff; however, there was no evidence that it would cause her permanent damage.
In order to permit the defence to fully respond to the claim against it, it makes sense that the threshold for taking away those rights is very high.
Tampilkan postingan dengan label examination for discovery. Tampilkan semua postingan
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Rabu, 09 Oktober 2013
Rabu, 22 Mei 2013
Litigation Privilege Protects Adjuster's File
When does litigation privilege arise in tort claims?
Panetta v. Retrocom, 2013 ONSC 2386 (S.C.J.)
In this slip and fall action, there was a question of whether litigation privilege applied to an investigation done by an adjuster prior to defence counsel being appointed. The plaintiff fell in a Wal-mart parking lot and an incident report was prepared. A few weeks later, an adjuster retained by Wal-mart's insurers wrote to the landlord of the premises advising it of the incident. The plaintiff sought production of the adjuster's notes, file and reports, on the basis that litigation privilege had not yet arisen at the time they were created/obtained.
Justice Quinn held that the notes were privileged:
[61] I think that, in third-party or tort claims (as opposed to claims by an insured against his or her own insurer), there is no preliminary investigative phase where privilege does not attach to notes, reports and files of adjusters. In third-party insurance claims, the sole reason for any investigation by or on behalf of an insurer is because of the prospect of litigation. It is naive to think otherwise; and the fact that the investigation may be used to arrive at a pre-lawsuit settlement does not detract from the point that I make. The prospect of litigation inherently includes the prospect of settlement.
When the adjusters were retained to conduct their investigation on behalf of Wal-mart's insurer, the sole purpose of any documents they created was in anticipation of litigation. The decision provides a helpful summary of the case law regarding litigation privilege (and as an added bonus, a nice example of Justice Quinn's sense of humour).
Panetta v. Retrocom, 2013 ONSC 2386 (S.C.J.)
In this slip and fall action, there was a question of whether litigation privilege applied to an investigation done by an adjuster prior to defence counsel being appointed. The plaintiff fell in a Wal-mart parking lot and an incident report was prepared. A few weeks later, an adjuster retained by Wal-mart's insurers wrote to the landlord of the premises advising it of the incident. The plaintiff sought production of the adjuster's notes, file and reports, on the basis that litigation privilege had not yet arisen at the time they were created/obtained.
Justice Quinn held that the notes were privileged:
[61] I think that, in third-party or tort claims (as opposed to claims by an insured against his or her own insurer), there is no preliminary investigative phase where privilege does not attach to notes, reports and files of adjusters. In third-party insurance claims, the sole reason for any investigation by or on behalf of an insurer is because of the prospect of litigation. It is naive to think otherwise; and the fact that the investigation may be used to arrive at a pre-lawsuit settlement does not detract from the point that I make. The prospect of litigation inherently includes the prospect of settlement.
When the adjusters were retained to conduct their investigation on behalf of Wal-mart's insurer, the sole purpose of any documents they created was in anticipation of litigation. The decision provides a helpful summary of the case law regarding litigation privilege (and as an added bonus, a nice example of Justice Quinn's sense of humour).
Rabu, 27 Maret 2013
Videotaping Examinations for Discovery
In what circumstances will a court permit examinations for discovery to be videotaped?
J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)
This action arose out of allegations of historical sexual assault. The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues. The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial. The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse. A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Justice Hennessy allowed the motion. Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts. There was a higher than normal probability that the defendant would not be available at trial given his age and health status. The video was permitted under r. 34 rather than r. 36.
J.M. v. Clouthier, 2013 ONSC 155 (S.C.J.)
This action arose out of allegations of historical sexual assault. The defendant was in his 70s and had diabetes and high blood pressure, although he submitted evidence that he had no current health issues. The plaintiff wished to videotape the defendant's examination for use at trial in case the defendant was not available to testify by the time of trial. The defendant argued that the dynamic of the examination for discovery would change, forcing him to incur more cost in preparation time, and the editing and splicing of video to be shown at trial could be prejudicial to him.
The motion was brought under r. 34.19, which permits pre-trial examinations by videotape "by order of the court", rather than r. 36, which permits evidence to be taken de bene esse. A witness examined under r. 36 may be examined, cross-examined and re-examined in the same manner as a witness at trial.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Given the technology available, one could imagine that more examinations for discovery might be amenable to videotape, particularly as demonstrative evidence is readily accepted and the trier of fact is likely to be comfortable with and perhaps even absorb visual information more readily than reading in transcripts.
Justice Hennessy allowed the motion. Technical issues could be dealt with by the trial judge. The Court was not convinced there would be substantially more time or cost involved in videotaping the examination, and the video could be useful in terms of showing documents, photographs or charts. There was a higher than normal probability that the defendant would not be available at trial given his age and health status. The video was permitted under r. 34 rather than r. 36.
Rabu, 06 Februari 2013
Examination for Discovery: Attendance of Parties
When a party has selected an individual to be examined on behalf of a corporation, is another corporate representative entitled to attend to observe discoveries?
In Cody v. Culley 2013 ONSC 199 (S.C.J.), the issue was whether a corporate representative could attend the examination for discovery of the individual chosen to be examined by the opposing party. The plaintiffs argued that a corporation cannot have a different representative attend discoveries when the adverse party has selected a representative. Master Glustein permitted the representative to attend. A corporation has the right to attend examinations for discovery as an independent legal entity. The corporate representative chosen by the adverse party is not required to have any decision-making power and a corporation may want someone at the discoveries who can decide litigation issues or at least report back to management for such decisions. The attendance of such an individual could assist in the settlement process or provide more informed instructions to counsel. The individual would not be attending to be examined, but to be the person who acts on behalf of the corporation to assist in the litigation decision-making process.
This decision could be useful to those representing corporate entities such as municipalities who wish to have a member of the Corporation observe discoveries to get a sense not only what the evidence might be but also how effective the witness may be.
In Cody v. Culley 2013 ONSC 199 (S.C.J.), the issue was whether a corporate representative could attend the examination for discovery of the individual chosen to be examined by the opposing party. The plaintiffs argued that a corporation cannot have a different representative attend discoveries when the adverse party has selected a representative. Master Glustein permitted the representative to attend. A corporation has the right to attend examinations for discovery as an independent legal entity. The corporate representative chosen by the adverse party is not required to have any decision-making power and a corporation may want someone at the discoveries who can decide litigation issues or at least report back to management for such decisions. The attendance of such an individual could assist in the settlement process or provide more informed instructions to counsel. The individual would not be attending to be examined, but to be the person who acts on behalf of the corporation to assist in the litigation decision-making process.
This decision could be useful to those representing corporate entities such as municipalities who wish to have a member of the Corporation observe discoveries to get a sense not only what the evidence might be but also how effective the witness may be.
Rabu, 12 September 2012
Production of Statements Made Following an Accident
A recent motion decision deals with two issues that can arise in defending claims: the extent of litigation privilege with respect to statements made following an incident, and whether reviewing such a statement prior to examination for discovery waives privilege.
In Knox v. Applebaum Holdings, 2012 ONSC 4181 (CanLii) the plaintiff brought a motion seeking production of a statement prepared by the defendant’s property manager following an accident in its parking lot. The accident occurred at 8:55 p.m.. The property manager was quickly notified, travelled to the parking lot, took pictures and called her risk manager to report what she had found at 12:35 a.m. At this point, she was aware that two people had been injured. She typed up a statement detailing her recollection of what she had seen and learned of the accident while it was fresh in her mind. The statement was delivered to the adjuster later that day.
On the motion, the issues were whether the statement was protected by litigation privilege and whether privilege was lost when the property manager reviewed it when she prepared for her examination for discovery.
Justice Hockin held that litigation privilege attached to the document. The property manager knew there was an accident and that two people had been injured. She believed that litigation would follow. It did not matter that the defendant was not represented by counsel at the time. The dominant purpose of the document was to facilitate her employer’s defence and to assist in her forensic involvement of the case.
Privilege was not waived. Justice Hockin relied on Wronick v. Allstate (1997), 7 C.P.C. (4th) 285 (Gen. Div.) where Justice Leitch held that reviewing a privilege document to refresh one’s memory in preparation for examination for discovery does not amount to a waiver of privilege.
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