Examination for Discovery

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 693-740

C

H A P T E R T

W

E N

T

Y

-

S E V E N :

Examination

for

Discovery

A.

DISTINCTIVE FEATURES

Discoveries

in

defamation actions, while fundamentally

the

same

as

discov-

eries

in

other actions, have certain distinctive

features.

The

extent

of the

discovery conducted

by the

defendant

is

governed very

strictly

by the

pleadings.

If the

defendant

has not

pleaded

a

defence

of

jus-

tification,

he or she is not

entitled

to

question

the

plaintiff

about

the

truth

of

the

defamatory expression

at

issue. Moreover,

if the

defamatory accusa-

tion

is

general

as

opposed

to

specific,

the

defendants questions relating

to

a

plea

of

justification will

be

strictly confined

to the

facts

alleged

in the

defendant's

particulars

of

justification.

An

unduly prolonged

and

hostile cross-examination

of the

plaintiff

on

discovery,

which increases

the

mental distress

and

humiliation

of the

plain-

tiff,

may

support

a

finding

of

malice which aggravates

the

plaintiff's

dam-

ages

or

supports

an

award

of

punitive damages.

The

plaintiff

is

allowed considerable latitude

in

exploring

the

state

of

mind

of the

defendant

if the

latter pleads

fair

comment

or

qualified privi-

lege,

or if the

plaintiff

pleads express malice

and

seeks aggravated

or

puni-

tive

damages.

The

defendants entire conduct

before,

during,

and

after

publication

may be

explored

by the

plaintiff

on

discovery.

Although

the

identity

of

newspaper sources

may be

relevant,

in

certain

provinces

the

court

may

defer

until trial

a

decision whether

or not the

defendant

should disclose those sources

to the

plaintiff

pursuant

to the

newspaper rule.

This chapter addresses discovery issues that

are

discussed

in the

defama-

tion jurisprudence.

It is

not, however,

a

checklist

of

topics

to be

covered

by

examining counsel

on a

defamation discovery.

The

specific

issues

of

fact

and

693

694

CANADIAN LIBEL

AND

SLANDER

ACTIONS

law

applicable

to a

particular defamation lawsuit will govern

the

conduct

of

discovery

by

plaintiff

and by

defendant.

Counsel

must also give close

consideration

both

to the

general

jurispru-

dence

in

their jurisdiction

and to the

specific

discovery rights

and

obliga-

tions created

by

statutes

or the

rules

of

court

in

their jurisdiction.

The

scope

and

nature

of the

right

of

oral examination

for

discovery

under oath

before

trial varies

to

some degree

from

province

to

province,

and

older case

law

which predates amendments must

be

regarded with caution.

Examination

for

discovery rights

are

currently defined

in the

following

statutory

instruments:

Alberta, Judicature Act,

R.S.A.

2000,

c.

J-2,

Alberta

Rules

of

Court,

Alta.

Reg.

390/68,

rr.

186-217, 468.

British

Columbia,

Court

Rules

Act,

R.S.B.C.,

1996,

c. 80;

Supreme Court Rules,

B.C.

Reg.

221/90,

rr. 26, 27, 29, 30.

Manitoba,

Court

of

Queen's

Bench

Act, S.M. 1988-89,

c. 4,

Court

of

Queen's

Bench

Rules,

Man. Reg. 553/88,

rr.

30-35.

New

Brunswick, Judicature Act, R.S.N.B.

1973,

c.

J-2,

Rules

of

Court, N.B.

Reg.

82/73,

rr.

31-36.

Newfoundland

and

Labrador, Judicature Act,

R.S.N.

1990,

c.

J-4,

Rules

of

the

Supreme Court, 1986, S.N. 1986, c. 42, Sched. D, rr. 30-32, 34, 36.

Northwest Territories, Judicature Act,

R.S.N.WT.

1988,

c.

J-l

(Alberta

Rules

of

Court

apply).

Nova

Scotia,

Judicature

Act,

R.S.N.S.

1989,

c.

240,

Civil

Procedure

Rules,

rr.

18-20,

22,24.

Ontario,

Courts

of

Justice

Act,

R.S.O.

1990,

c.

C-43;

Rules

of

Civil

Procedure,

R.R.O.

1990, Reg. 194,

rr.

30-35.

Prince

Edward Island, Supreme Court

Act,

R.S.PE.I.

1988,

c.

S-10,

Rules

of

Civil

Procedure,

rr.

30-35.

Saskatchewan,

Queen's

Bench

Act,

R.S.S.

1978,

c.

Q-l,

Queen's

Bench Rules,

rr.

212-40.

Yukon Territory, Judicature Act,

R.S.Y.

1986,

c. 96

(British Columbia Supreme

Court

Rules

apply).

Federal Court

Rules

(1998),

r.

240.

Chapter

Twenty-Seven:

Examination

/or

Discovery

695

Generally,

as in

other actions,

a

defamation examination

for

discovery

is

a

cross-examination

in the

true sense.

The

examining party

is not

confined

to

asking questions which merely

go to

proving

the

examining

party's

claim

or

defence

(as the

case

may be) but may ask

questions calculated

to

obtain

statements

or

admissions

which

tend

to

impair

the

opposing

party's case.

As

noted above, however, this general rule

is

subject

to

limiting

features

defined

in the

defamation jurisprudence, particularly with respect

to the

defence

of

truth where

the

quality

of the

defendant's pleadings

are

vital

to

issues

of

relevance.

The

entitlement

to

cross-examine

on an

examination

for

discovery

is

explicitly stated

in the

rules

of

court

in

certain jurisdictions.

For

example,

British

Columbia Rule

27

(21) states:

The

examination

of a

person

for

discovery shall

be in the

nature

of a

cross-

examination

...

The

rules

of

court may,

on

their

face

confer

wider discovery rights

in

some

provinces than

in

others.

For

example,

it has

been held

in a

defama-

tion context that

the

Nova Scotia discovery rule

is

somewhat wider than

similar rules

in

force

in

some

of the

other provinces.

King

v.

King

(1975),

20

N.S.R.

(2d) 260,

per

Cowan

C.J.T.D.

at 263

(S.C.

(T.D.)),

cited

in

Campbell

v.

Jones

(1998),

168

N.S.R.

(2d)

1, per

MacAdam

J.

at

paras.

8, 11

(S.C.).

McCrea

v.

Canada

Newspapers

Co.

(1993),

122

N.S.R.

(2d)

411

(S.C.),

aff'd

(1993),

109

D.L.R.

(4th) 396,

per

Hallett J.A.

at

398-99

(N.S.S.C.

(A.D.)).

The

Nova Scotia discovery rights

are

found

in

Rule

18

which

provides

in

material

part:

18.09(1)

Unless

it is

otherwise ordered,

a

person, being examined

upon

an

examination

for

discovery, shall answer

any

question within

his

knowledge

or

means

of

knowledge concerning

any

matter,

not

privileged, that

is

relevant

to the

subject matter

of the

proceeding,

even

though

it is not

within

the

scope

of

the

pleadings

(emphasis added).

18.12(2)

No

objection

to any

question shall

be

valid

if

made solely

upon

the

ground that

any

answer thereto will disclose

the

name

of a

witness,

or

that

the

question will

be

inadmissible

at the

trial

or

hearing

if the

answer sought

appears reasonably calculated

to

lead

to the

discovery

of

admissible

evidence.

The

counterpart provision

in

British Columbia

is

Rule

27

(22) which

simply provides: