Court Denies Request to Examine Non-Parties

The court has discretion to order an examination for discovery of a non-party. Before such an order is granted, the court must be satisfied that:

• the moving party has been unable to obtain the information from other people whom the moving party is entitled to examine for discovery, or from the person the moving party seeks to examine;

• it would be unfair to require the moving party to proceed to trial without having the opportunity of examining the person; and

• the examination will not unduly delay the commencement of the trial, entail unreasonable expense for other parties, or result in unfairness to the person the moving party seeks to examine.

The case of Merritt v. London Health Sciences Centre, 2021 ONSC 4351, involves a medical malpractice action. The plaintiff’s lawyer had already conducted examinations for discovery of the hospital, nine defendant nurses, and 10 defendant doctors. The plaintiff subsequently sought to examine two non-party witnesses who were nurses at the hospital.

Master Frank was satisfied that the non-party nurses have relevant information. He also agreed that the proposed examination of the non-party nurses would not unduly delay the commencement of the trial, entail unreasonable expense, or result in unfairness to the non-party nurses.

However, Master Frank held that the plaintiffs have not demonstrated that they are unable to obtain the desired information from the hospital or other parties to the action.

Master Frank agreed with the hospital that the plaintiffs made limited efforts to obtain the information through the usual discovery process. There was no specific request to the hospital to ask the non-party nurses for the information the plaintiffs are now seeking.

Further, Master Frank was not satisfied that it would be unfair to require the plaintiffs to proceed to trial without having the opportunity to conduct discoveries of the non-party witnesses. He noted that, in most cases, discoveries are limited to only the parties. Further, a judge at a pre-trial conference has the authority to order the parties to deliver written summaries of the anticipated evidence of witnesses.

As a result, the plaintiffs’ request to examine the non-party witnesses was denied. The main thing in a motion to examine a non-party is to demonstrate that the information cannot be obtained from parties to the litigation or from the non-party itself through other means.