Fridays with Rogers Partners

August 13, 2021

At our weekly meeting, Pip Swartz discussed the recent decision of the Ontario Superior Court of Justice in Merritt v. London Health Sciences Centre, 2021 ONSC 4351. This decision concerned a motion by the plaintiffs to examine non-parties for discovery, which was heard on June 14, 2021.

Facts

The motion arose in the context of a medical malpractice action commenced by the plaintiff, Dr. Merritt (who passed away during the litigation) against London Health Sciences Centre (the “Hospital”) and various physicians and nurses who treated Dr. Merritt at the Hospital. Dr. Merritt alleged that he received negligent care while at the Hospital.

On the motion, the plaintiff (Dr. Merritt’s estate) sought leave to examine two non-parties to the litigation, nurses who worked at the Hospital while the plaintiff was receiving care there. One of these nurses was on a leave of absence, and the other nurse was no longer working for the hospital. Accordingly, neither of the nurses were employees of the Hospital such that they were compellable as witnesses to represent the Hospital for its examination for discovery.

During the discovery process, the plaintiffs realized that one of the defendants named in the claim, Nancy Hopkins, was not who they thought she was. During the discovery process, the plaintiffs received medical records that showed which physicians and nurses provided care to Dr. Merritt. On some of these records the initials ‘NH’ were written. The plaintiffs incorrectly thought this referred to the nurse Nancy Hopkins, but in fact it referred to the nurse Nancy Hilborn. Nancy Hilborn no longer worked as a nurse for the hospital, and she was accordingly one of the non-parties the plaintiffs wanted to examine for discovery.

Analysis

Each party to an action is entitled to examine one person on behalf of each adverse party for discovery. If a party wishes to compel the examination of a person who is not a party to the action for discovery, the party must obtain leave of the court to conduct the examination.

Legal Test

The test for deciding whether the court will allow a non-party to be examined can be found under rule 31.10(2) of the Rules of Civil Procedure[1], and requires the moving party to demonstrate that:

  1. the moving party has been unable to obtain the information from other persons whom the moving party is entitled to examine for discovery, or from the person the party seeks to examine;
  2. it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and
  3. the examination will not,
    1. unduly delay the commencement of the trial of the action,
    2. entail unreasonable expense for other parties, or
    3. result in unfairness to the person the moving party seeks to examine.

In deciding whether or not to grant leave, the court’s decision often turns on the first part of the test, and specifically whether or not the moving party is able to obtain the information they want without having to examine the non-party.

In this case, the motion judge found that the non-party nurses did have important information relevant to the trial, because they had helped care for the plaintiff when he was in the hospital. However, the court’s analysis focused on whether or not the moving party had satisfied their burden of demonstrating that they were unable to obtain this information without examining the non-parties.

Courts tend to consider two factors when evaluating whether a moving party has shown that they were unable to obtain the information sought from the non-parties in any other way. The court will ask whether the moving party has exhausted the discovery process of the witness they already examined, and the court will also ask if the moving party attempted to elicit the answers from the non-party outside of the discovery process.

Decision

In this case, the court found that the moving party did not exhaust all their rights of discovery before seeking to examine a non-party witness for discovery. The court found that the moving party could have asked more questions of the witnesses they did examine regarding the non-party nurses, or could have obtained undertakings to have these questions answered. At paragraph 40 of the decision, the court noted:

The plaintiffs could have asked the Hospital’s discovery witness to make specific inquiries of the Non-Party Nurses to address the plaintiffs’ areas of concern and in order to obtain their evidence. It is not appropriate to resort to Rule 31.10 to address the inadequacies of an earlier examination for discovery.

The court also found that the moving party failed to satisfy the second part of the test under rule 31.10(2) of the Rules of Civil Procedure. The court found that it would not be unfair to deny the moving party the opportunity to examine the non-party nurses because the moving party did not have the right to do so in the first place. In paragraph 40 of the decision, the judge states:

To the extent that the respondents have had, and continue to have, access to the Non-Party Nurses and their evidence and the plaintiffs do not, this fact does not, by itself, constitute unfairness. It is a common occurrence in litigation.

As to the third part of the test under rule 31.10(2), the judge found that it would likely not be unreasonably expensive, time consuming, or inconvenient to examine the non-party nurses.

However, because the judge found that 1) the moving parties did not show that they were unable to obtain the information they wanted without resorting to examining the non-party nurses, and 2) it would not be unfair to require the moving party to proceed to trial without having examined the non-party nurses, the motion was dismissed.

Takeaway

This decision follows and supports the existing case law in Ontario[2] on the topic of obtaining leave to examine a non party witness. Courts have held (and continue to hold), that the bar is set high for moving parties who wish to examine non-parties for discovery.

Unless the moving party has fully exhausted all possible avenues in their attempts to obtain the desired information, only then will the court consider granting them leave to examine a non party witness. The attitude of the Ontario courts towards allowing the discovery of non-parties for examination is summarized succinctly at paragraph 21 of Ozdemir v Economical Mutual Insurance Group, 2018 ONSC 214[3]:

In order for the court to compel a non-party to attend at examinations for discovery, there must be a refusal, actual or constructive, to obtain the information sought. Then, and only then, may the court exercise this discretion to make this order considering whether this is the just, most expeditious and least expensive determination, as well as whether it is proportionate.

[1] R.R.O. 1990, Reg. 194, s. 31.10

[2] See Hopkins v. Green Equipment, 2018 ONSC 998; Din v. Melady, 2010 ONSC 4685; Fischer v. IG Investment Management Ltd., 2016 ONSC 4405

[3] Ozdemir v Economical Mutual Insurance Group, 2018 ONSC 214, quoting Famous Players Development Corp. v. Central Capital Corp. (1991), 6 O.R. (3d) 765 (Ont. Div. Ct.) pp. 11-12).