PREPARING TO EXAMINE A WITNESS

Transcription

1 ) PREPARING TO EXAMINE A WITNESS ) These materials were prepared by Michelle Ouellette and Nikki. Rudachyk, of McKercher McKercher & Whitmore law firm Saskatoon, Saskatchewan for the Saskatchevvan Legal Education Society Jnc. seminar, Maximizing Opportunities: Using Examinations for Discovery ;Effectively;May2004..

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3 TABLE OF CONTENTS I. II. Introduction 1 Pre-Examination for Discovery Considerations 1 A. Pertinent Steps in the Litigation Process 1 1. Close of Pleadings 1 2. Disclosure and Production ofdocuments 1 B. Who May Be Examined and Who to Examine 1 1. Parties Adverse in Interest 1 2. Corporations 2 3. The Crown 3 4. Minors 3 5. Beneficiaries ofactions 3 6. Third Parties 3 C. Arranging the Examination for Discovery 3 1. Where to hold the Examination for Discovery 3 2. Booking a Court Reporter 3 3. Compelling Witness Attendance 4 III. What to Prepare for at the Discovery 5 A. Nature and Scope of the Examination for Discovery 5 B. Objections 5 C. Undertakings 6 D. Exclusion of Others 6 E. Documents 6 F. Adjournments 7 G. Other Practical Considerations 7

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5 PREPARING TO EXAMINE A WITNESS I. Introduction The purpose ofexamination for discovery is well described as two-fold: (1) to provide a party with a means ofobtaining particulars relevant to the litigation (the fact-finding aspect ofdiscovery), and (2) to obtain evidence (especially admissions) that can be used at trial (evidentiary aspect ofdiscovery). (Tundra Mechanical &Millwrighting (1988) Ltd. v. Ecco Heating Products Ltd., [1997J 5 l.l.r. 43, 154 Sask.R. 56 (Q.B.)) II. Pre-Examination for Discovery Considerations A. Pertinent Steps in the Litigation Process 1. Close ofpleadings Rule 226 states that examination may occur any time after the Statement ofdefence is filed. Despite this Rule, the practice is to exercise the right only after the pleadings are closed, since otherwise the issues are not determined (Green v. Praski (1985),43 Sask. R. 225 (Q.B.)). 2. Disclosure and Production of Documents While there is an ongoing duty of disclosure and production of documents, it is clear that the duty arises initially and should be met, prior to examination for discovery (Popowich v. Saskatchewan (1996), 144 Sask. R. 166 (CA.)). Your questioning will depend upon the issues raised in the pleadings, but also upon the evidence contained in the disclosed and produced documents. B. Who May Be Examined and Who to Examine 1. Parties Adverse in Interest Rule 222 states that a party may examine, without order, any party who is adverse in interest. A party is adverse in interest to another party if he has a direct pecuniary or other substantial legal interest adverse to the legal interest ofthe other party although they may be on the same side ofthe record (Rose &Laflamme Ltd. v. Campbell, Wilson & Strathdee Ltd., [1923J4 D.L.R. 92, [1923J2 l.l.r. 1067, 17Sask. L.R. 332 (CA.)).

6 Page 2 2. Corporations Rule 223 deals with the examination of a corporate party. Basically, anyone who has been or is an officer or servant ofa corporation may be examined without order. However, an examination ofa past officer or past servant may never be used as evidence against the corporation (Diehl v. London Life Insurance Co., [1982]1 W W.R. 673, 13 Sask. R. 394, 25 C.P.c. 258 (C.A.); aff'g (1981), 132 D.L.R. (3d) 97, 13 Sask. R. 404, 22 c.p.c. 16 (Q.B.); Pentagon v. Weyburn Inland Terminal Ltd. (1979), 12 c.p.c. 39 (Sask. c.a.); K and P Holdings Ltd. v. Sask. Gov't Ins. (1989), 81 Sask.R. 314 (C.A.)). Ifthe examinee's evidence is to be used at trial against the corporation, the officer or servant must be designated as the "proper officer" to be examined either by agreement or by court order. In designating the proper person to be examined on behalfofa corporation which consents, the Court is not confined to selecting an "officer"; the rule permits the selection of the most suitable person (lnternationalminerals & Chemicals Corp. v. Commonwealth Insurance Co., [1991]1 WWR. 503, 89 Sask. R. 81 (Q.B.)). In designating the proper person, the court will generally consider: (a) which person is best able to give information of the circumstances surrounding the particular case; and (b) which person occupies a position of such responsibility and importance that in the circumstances of the case would qualify him to speak on behalf ofthe corporation. (Hawman v. McConnell (1987),64 Sask. R. 291,21 c.p.c. (2d) 243 (Q.B.); Westfair Foods Ltd. v Saskatchewan Ltd., [2002] S.l. No. 579 (C.A.)). Confirm that the officer's status at the date ofthe discovery has not changed. (Pentagon v. Weyburn Inland Terminal (1979), 12 c.p.c. 39 (Sask.C.A.))

7 Page 3 3. The Crown The rules apply to the Crown in the usual fashion except that the Crown has the prerogative to refuse to answer on the grounds ofprotection ofthe public interest. (The Proceedings Against the Crown Act, RS.S c.p-27) 4. Minors Rule 222 and the case ofabrahamson v. Buckland [1990}, 5 W WR. 193 (Sask. CA.) are authority for the principle that children are subject to examination. However, a litigation guardian may apply to the court for directions if in doubt as to the child's capacity or competence. 5. Beneficiaries of Actions Rule 224 states that "apersonfor whoseimmediatebenefit an action is prosecuted ordefended shall be regarded as a party for the purpose of examination." (Johnson v. Hawks, [1924) 3 D.L.R. 534 (CA.); Provincial Court Judges' Association v. Saskatchewan, [1996} 8 W WR. 16 (Q.B.)). 6. Third Parties Rule 222A deals with the examination of third parties. Resort to this rule will generally follow examination for discovery ofa party, when it becomes clear that the party has not been able to obtain the required information from the third party, either beforehand or afterward pursuant to an undertaking to try to do so, and when you have been otherwise unable to obtain the information yourself. There are a number offactors which enter into the determination to grant leave to examine under this rule. Admissions obtained by examination under Rule 222A may not be read in at trial. The rule also specifically excludes experts retained to assist in litigation, although it has been held that this rule should be liberally construed to permit the court to exercise its discretion to allow examination ofan expert concerning matters which arose prior to the expert being retained in the litigation (International Minerals, supra).

8 Page 4 c. Arranging the Examination for Discovery 1. Where to hold the Examination for Discovery There are no set guidelines as to where an Examination for Discovery is to be held. In practice, they may be held atthe courtreporter's office, at the office ofcounsel, or at anotherprofessional location. Unless otherwise ordered or agreed, where a person resides in Saskatchewan, the examination should take place at the Judicial Centre nearest the residence of the witness. 2. Booking a Court Reporter Rule 237 sets out the requirements for booking a court reporter. 3. Compelling Witness Attendance There are several ways to arrange for a witness to attend for examination for discovery: (a) by consent; (b) by appointment (Form 6) - Rules 227 and 228 set out that a party may take out an appointment through the local registrar. This appointment is to be served upon counsel for the other side five days prior to the examination date or ten days prior to the examination date if the other party lives outside your judicial centre. Conduct money is to be paid at the time the appointment is served. The default location for the examination for discovery is the judicial centre nearest to the place where that person you seek to examine lives; (c) by subpoena as set out in Rule this must be served on the actual party you seek to examine 48 hours before the Examination for Discovery. It is, however, a good idea to serve this on both the party and their counsel. You may wish to use and serve both an appointment and a subpoena to compel attendance from a party. Conduct money must be served with the subpoena; (d) appointment of special examiner, place and time for a party outside ofthe province (Rule 229). Conduct money must be served at the same time as this appointment. Don'tforget about paying the witness the appropriate conductmoney, or obtaining the agreementto forgo it. Reasonableness, but not extravagance, is key.

9 PageS III. What to Prepare for at the Discovery A. Nature and Scope of the Examination for Discovery Very briefly, as this topic will be covered in more depth elsewhere, there is a broad relevance test with respect to examination for discovery. This principle was outlined in Steier v. University Hospital, [1988]4 W. W.R. 303, 67 Sask. R. 81, 27 c.p.c. (2d) 18(C.A.) and broadened even further in Soke Farm Equipment Ltd. v. New Holland ofcanada Ltd., [1990]2 W.W.R. 762,82 Sask. R. 287, 43 c.p.c. (2d) 237 (C.A.). Examination for discovery is, however, limited by the pleadings (Milton Farms Ltd. v. Dow Chemicals Canada Inc. (1987), 52 Sask. R. 264, 13 C.P.C. (2d) 174 (Q.B.); Prairie Security Fund Ltd. v. Gustafson (1996),153 Sask. R. 318 (Q.B.), and ifquestions do not relate to the issues raised in the pleadings, they are properly the subject of objection. Examination for discovery does include disclosure of witness names (Soke, supra). It does not include questions ofcharacter and credit unless such evidence is directly in issue (Carney v. Carney (1913), 5 W. W.R. 849 (Sask. Q.B.); Austman v Royal Bank (1992), 97 Sask. R. 258 (C.A.). Opinions of experts retained by the parties are not generally the subject of proper questioning, however, facts and observations forming the basis for the opinion are otherwise, and in some cases, the privilege surrounding an expert's opinionmustgive wayto disclosure. (International Minerals, supra) Accordingly, be prepared to explore this as a possible area ofinquiry ifthe facts ofyour case justify it. B. Objections Rule 232 deals withobjections to questions in an examinationfor discovery. (Practically,thecalling of the Registrar is usually waived by consent.) Objections in an examination for discovery will generally be made on the basis of privilege or irrelevancy. You should be able to anticipate the questions or areas ofinquiry which might prompt an objection, so try to craft your questions, and the lead-up to them, so as to avoid that. There is little value in fighting over an objection. Get the basis for the objection and make a reasonable response butif opposing counsel is adamant, move on and let the Court decide on application.

10 Page 6 c. Undertakings Undertakings are regarded as a promise to give relevant information that the witness does not have at the time ofthe examination, however what they amount to are an acknowledgement that the question is proper but the witness can't answer it at the time. The witness (and sometimes counsel) undertake to get the information and produce such information to the examiner once the examination for discovery is finished. Choose the wording of requests for undertakings carefully, and decide how you want to be provided with answers. Leave yourself the option ofresuming the discovery to question on anything arising out ofthe undertakings or additional documents. (Although written answers will often be sufficient, that will not always be the case.) Follow-up examination based on answers to undertakings forms part of your original examination, and written answers may be deemed part ofthe transcript. (Hence the cautionary note about written answers!) (If a witness cannot provide certain information, and the other criteria are met, you may have the option of examining third parties under Rule 222A.) D. Exclusion of Others The general rule is that any party has the right to attend at the examination of any other party. In practice, parties with the same interest will often be excluded from the examining room during questioning, and the Court has discretion to order that relief. (Basu v. Bettschen et ai, [1975] 5 llz llzr. 754 (Sask.Q.B.)) Parties adverse in interest are not generally excluded but it happens (for example ifthere is a risk ofintimidation). The "public" has no right to attend but the witness may be accompanied and assisted by a resource person in some cases. (Brown v. Normanview Daycare Corp. (1986),46 Sask.R. 227 (Q.B.)) You'll want to consider, in advance, whether those issues are likely to arise in your examination. E. Documents One ofthe most useful aspects ofdiscovery is the opportunity to prove relevant documents through the witness. Everyone has their own style or preferred "system" ofmarking documents. One wayis to organize those documents you wish the witness to identify and confirm, and do so at the start of

11 Page? the examination with no extra discussion. Once marked, they can be easily used during the course of your questioning. Others prefer to prove and mark documents as they proceed through their questioning, as each document arises logically. Either way it is essential to know your documents, and the other party's. F. Adjournments When an examination for discovery is adjourned sine die to allow the other party to comply with undertakings, or because of insufficient time, be aware of Rule 231 which exists to combat undue delay in the proceedings. G. Other Practical Considerations 1. Have a plan. Know your own case inside out and question with a view to bolstering it by obtaining admissions that support your view ofthe issues. Be very familiar not only with your own documents, but with those disclosed and produced by the other side. Consider drafting your questions in advance and consider what questioning technique you are most comfortable with. Be flexible and ready to switch "techniques" ifthe witness is one for whom your planned strategy doesn't seem fruitful. 2. Don'tholdback, try to find outeverythingyou can aboutthewitness's view of the case. (Better now than later.) Ifthe witness wants to talk, so be it, but make sure the answer is responsive to your question. 3. If the case involves technical or highly specialized evidence, consider retaining an expert to assist you in preparing your questioning. 4. You will want to engage in "testing" each ofthe allegations in the opposing pleading. Sometimesyou can determinethatthere are "non-issues". You wanttotouchon all ofthe essential elements of the case and see ifthere is a crucial element missing.

12 Page 8 5. Work the document situation: (a) take advantage of the opportunity to have the witness identify and acknowledge documents, marking them as exhibits where appropriate; (b) use the time to probe for further disclosure of documents, bearing in mind that relevance at the discovery stage is different than admissibi~ity at trial. Answers to your questions may lead to the realization that there are relevant documents of which you are unaware. You may end up requesting a supplemental statement as to documents after the discovery. (c) consider whether you wish to examine on the issue of production/privilege as set out in the Statement as to Documents. 6. What to do if a witness does not show up? I suggest you should wait a reasonable time (30-40 minutes). An attempt by counsel to agree to a new date is appropriate, but at this stage one should take thestep ofutilizing the rules as to appointments and/or subpoenasifyou haven't alreadydone so. (An application maybemade underrule 231 to strikethepleadings ofan absent party who breaches an appointment or an order, however the court will be reluctant to do so unless there has been obvious abuse. The Court will specify a date, however, and facilitate the application in the event offurther non-compliance.