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,
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),
(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:
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