Czuy v. Mitchell, (1976) 1 A.R. 434 (CA)

• Judge: Prowse, Moir and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 01, 1976
• Jurisdiction: Alberta
• Citations: (1976), 1 A.R. 434 (CA)

Czuy v. Mitchell (1976), 1 A.R. 434 (CA)

MLB headnote and full text

Czuy and Czuy v. Mitchell, Edmonton General Hospital and General Hospital (Grey Nuns) of Edmonton

Indexed As: Czuy and Czuy v. Mitchell, Edmonton General Hospital and General Hospital (Grey Nuns) of Edmonton

Alberta Supreme Court

Appellate Division

Prowse, Moir and Haddad, JJ.A.

October 1, 1976.

Summary:

This case arose out of the plaintiff's claim for damages resulting from medical malpractice. The infant plaintiff was born prematurely and lost the sight of both eyes, allegedly through the negligence of the defendant physician. The plaintiff's claim was framed on the premise that the physician's knowledge and training were such that he was negligent, even though a less skilful and learned member of the profession administering the same treatment in the same manner would not be negligent. At the examination for discovery of the physician the physician's counsel instructed him not to answer questions concerning his training and experience. The Supreme Court in chambers ordered the physician to re-attend and answer the questions. The physician appealed.

The Appellate Division dismissed the appeal. The Appellate Division held that, if counsel for the plaintiff was to be restricted in the range of his examination, the effect would be to strike out the cause of action alleged to the extent that it was based on a higher duty owed by the physician because of his superior knowledge and training. The Appellate Division held that the court should not so restrict the plaintiff's cause of action.

The Appellate Division exhaustively set out the principles concerning the range of questions permitted at an examination for discovery.

Practice - Topic 4251

Discovery - Range of examination - Rules of Court, Rule 200 - Meaning of the words "touching the matters in question" - The Alberta Court of Appeal held that the words "touching the matters in question" are broader in scope than the words "material" and "relevant" - The Appellate Division held that wide latitude is to be permitted on examination for discovery and the examination may be searching and exploratory - The Appeal Division held that, if the questions asked can possibly affect the issues between the parties or if they are questions which may be permitted on cross-examination, then they must be answered - The Appellate Division held that the court will not exercise control over the manner in which counsel conducts an examination for discovery, so long as counsel is not abusive, does not ask questions which are clearly irrelevant and does not examine at such length that the examination constitutes a delaying tactic.

Words and Phrases

Touching the matters in question - The Alberta Court of Appeal discussed the meaning of the phrase "touching the matters in question" in the Alberta Rules of Court, Rule 200 - The Appellate Division held that the words "touching the matters in question" are broader in scope than the words "material" and "relevant".

Cases Noticed:

Cerny v. Canadian Industries Limited et al., [1972] 6 W.W.R. 88, appld. [para. 8].

Rural Municipality of Mount Hope No. 279 v. Findlay, [1919] 1 W.W.R. 397, appld. [para. 16].

Harvie v. Canadian Pacific Railway et al., [1928] 1 W.W.R. 187, appld. [para. 17].

Canadian Utilities Limited v. Mannix Limited and Others (1959), 27 W.W.R. (N.S.) 508, revd. 29 W.W.R.(N.S.) 289, appld. [para. 18].

Medicine Hat Wheat Company v. Norris Commission Company Ltd. (1916), 10 W.W.R. 1092, appld. [para. 19].

Timber Company Limited et al. v. Lake Logging Company Limited et al., [1947] 1 W.W.R. 810 (B.C.C.A.), appld. [para. 20].

Carney v. Carney (1913), 5 W.W.R. 849, appld. [para. 20].

Turvey and Mercer v. Lauder (1954), 12 W.W.R.(N.S.) 411, appld. [para. 21].

Turta v. Canadian Pacific Railway and Imperial Oil Limited et al. (1951), 2 W.W.R.(N.S.) 628, appld. [para. 22].

Statutes Noticed:

Rules of Court (Alberta), rule 200 [para. 17].

Counsel:

R.J. Baril and L.M. Dolgoy, for the respondents;

J.C. Major, Q.C. and J.D.B. McDonald, for the appellant.

This case was heard before PROWSE, MOIR and HADDAD, JJ.A., of the Alberta Supreme Court, Appellate Division.

On October 1, 1976, the judgment of the Appellate Division was delivered at Edmonton, Alberta, and the following opinions were filed:

PROWSE, J.A. - see paragraphs 1 to 13.

HADDAD, J.A. - see paragraphs 14 to 26.

MOIR, J.A., concurred with PROWSE, J.A.