Fridays with Rogers Partners

At our weekly meeting, Eli Feldman discussed the recent decision of the Superior Court of Justice in Singh et al. v. Braich, 2023 ONSC 5053, which concerned a motion that followed an examination for discovery gone awry.

Background

The underlying action arose out of a motor vehicle accident in July 2019. Following the accident, the plaintiff, Paramjit Braich, sought damages for personal injuries allegedly sustained in the accident, including income loss and medical and rehabilitation expenses.

The Discovery of Ms. Braich

The examinations for discovery of Ms. Braich were held on August 25, 2022.Only 20 minutes into the examinations, counsel for the defendant, a 1984 call to the Ontario Bar, asked Ms. Braich if she had hurt her wrist in 2015.

Before Ms. Braich could answer, her counsel, a 2018 call, interjected and explained that the plaintiff objected to answering any questions about her medical history for more than three years pre-accident, unless there was specific reference to it in her medical records as an ongoing issue.

Although this was the first refusal of the day, defence counsel accused plaintiff’s counsel of making a blanket refusal, and threatened to adjourn the discovery unless plaintiff’s counsel changed her mind and permitted her client to answer his questions.

Plaintiff counsel tried to explain that she was not making a blanket refusal, but things escalated, and counsel began talking over each other. Finally, defence counsel threatened once more to adjourn the examination and bring a motion to compel the plaintiff to answer the questions to which her counsel objected.

Then, abruptly, he left.

The Motion

On August 31, 2023, defence counsel followed through on his ultimatum and brought a motion to compel Ms. Braich to answer his questions. On the motion, defence counsel relied on r. 34.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), whichpermits a lawyer to adjourn an examination where proceeding would be futile because of improper objections or interruptions, or where the examinee is being evasive, non-responsive, or verbose.

Plaintiff’s counsel opposed the motion on the grounds that the defendant improperly adjourned the motion. In her view, plaintiff’s counsel had a legitimate objection to the questions posed to her client, and contended that the examination could have continued with the refusal being dealt with at a later time.

Issue

The issue before Justice M.M. Rahman of the Superior Court of Justice was whether defence counsel improperly adjourned the plaintiff’s discovery. Expressed differently, the question was whether the plaintiff’s conduct rendered proceeding with the examination “futile” within the meaning of the Rules.

Analysis

Justice Rahman began his analysis by canvassing Ontario caselaw addressing r. 34.14 of the Rules, which establishes a relatively high bar to adjourn an examination based on the conduct of counsel. In general, the case law demonstrates that an adjournment “should only be necessary when counsel for the party being examined has refused all requests to conduct him or herself in accordance with the rules and interference has become so extreme as to render the discovery futile and to require the court’s intervention.”

According to the motions judge, this bar was not reached in the circumstances of this case. Plaintiff’s counsel complied with the Rules, and there was nothing stopping defence counsel from continuing with his discovery and bringing a motion to compel the plaintiff to answer his questions at a later time.

Interestingly, Justice Rahman took time to reflect on the relationship between opposing counsel in the litigation context. In this regard, the motions judge characterized the events that transpired at the plaintiff’s discovery as “an attempt by a senior lawyer to bully a junior lawyer.” In his words, bullying of this kind:

“…is unfortunately a common occurrence in the practice of law. It should not happen. When it does happen, counsel who decide to conduct themselves that way should understand that their behaviour will be called out. Senior members of the bar should serve as examples to their junior counterparts. They should not use their seniority to try and gain a tactical advantage.”

Ultimately, the motions judge noted that defence counsel’s behaviour toed the line of “reprehensible, scandalous, or outrageous” conduct that would justify awarding costs on a substantial indemnity basis. However, Justice Rahman elected to award costs of the motion to the plaintiff on a partial indemnity basis and ordered that her discovery continue where it left off.

The motion was dismissed.

Conclusions

This case serves as an important reminder that the way counsel behaves inside a boardroom could someday make its way before a judge, who might see things very differently than counsel.

And one thing is certain: from the schoolyard to the courtroom, bullying will never rule the day.