Court offers rare guidance on right to oral discovery

Does a plaintiff have a right to an oral interrogation of the defendant? That issue was at the heart of a recent ruling that considered an “important practice issue” in a case involving a defendant who says he’s too ill to attend oral discovery.

'Because there are few of these motions, it’s good to have decisions,' says Sally Gomery.The case, Ozerdinc Family Trust v. Gowlings, involves a solicitor’s negligence claim against a retired lawyer from Gowling Lafleur Henderson LLP who says he “suffers from a health condition which renders oral discovery onerous and impractical.”

The plaintiffs are seeking damages from the lawyer, who retired on long-term disability, as well as two other practitioners over advice they say resulted in a substantial tax burden. They argue the lawyer has knowledge of the most critical pieces of information they’re seeking and are insisting on oral discovery, according to Ontario Superior Court Master Calum MacLeod’s ruling on the issue last week.

“They argue that written interrogatories are a poor substitute because written answers are not spontaneous,” wrote MacLeod in summarizing the plaintiffs’ opposition to the lawyer’s motion for written interrogatories.

“Moreover as it cannot be readily anticipated what answers will be forthcoming and what follow up questions will be necessary, successive exchange of written questions and affidavits will take longer and be far less efficient.”

The defendant, meanwhile, says he suffers from a debilitating medical condition that causes chronic pelvic pain and requires regular breaks.

In considering the motion, MacLeod considered a number of issues, including the right to oral or written examination under Rule 31.02 of the Rules of Civil Procedure.

“The election as to whether to exercise those rights and what form of discovery to initiate is the right of the examining party and not the party being examined,” wrote MacLeod.

But MacLeod also found the court has the ability to modify discovery rights under its jurisdiction to control its own processes. He noted as well that other jurisdictions, including Australia, New Zealand, and other Commonwealth countries, don’t ordinarily provide for oral discovery.

In the end, MacLeod rejected the plaintiffs’ assertion that the defendant was improperly trying to evade discovery.

“But the evidence does not persuade me that oral discovery properly managed would likely produce physical or psychological harm,” he wrote, noting that the defendant drives, exercises, and otherwise functions “albeit with considerable difficulty.”

MacLeod, then, rejected the defendant’s motion for a written process but opted for what he called safeguards to protect his health.

“The discovery should therefore take place in an environment in which the plaintiff is comfortable, either at his home or at his lawyer’s office. The discovery is also to be conducted in several short sessions with provision for breaks as necessary. The defendant may have his physician or psychologist present if he wishes.”

Sally Gomery, a partner at Norton Rose Fulbright Canada LLP who acted for a third party involved in Ozerdinc Family Trust, says it was an interesting case given how rarely the issue arises with few decisions on such motions.

“Because there are few of these motions, it’s good to have decisions,” she says. “I’m very happy to have some direction on this issue because we don’t often have that direction.”

And while Gomery acknowledges concerns about the potential overuse of discovery in some cases and the concern about abuse where it’s not necessary, she says the case reiterates the “high bar” in Ontario around upholding the right to oral discovery.

“Accommodation doesn’t mean avoidance,” she says, citing some of the concerns about written interrogatories, including that the answers “will often be written by opposing counsel.”

In this case, Gomery feels the court struck the right balance given the competing issues at play.

“To me, this actually illustrates how the system works,” she says, noting the accommodations for the defendant while still upholding the right to oral discovery. “At the same time, we’re going to be humane about it,” she adds.

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