Mercer v. Cronin, 2015 NBCA 13

• Judge: Drapeau, C.J.N.B., Deschênes and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: February 10, 2015
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 13;(2015), 432 N.B.R.(2d) 399 (CA)

Mercer v. Cronin (2015), 432 N.B.R.(2d) 399 (CA);

    432 R.N.-B.(2e) 399; 1128 A.P.R. 399

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. MR.008

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MR.008

Paul Mercer (appellant) v. Peter J. Cronin (respondent)

(102-14-CA; 2015 NBCA 13)

Indexed As: Mercer v. Cronin

Répertorié: Mercer v. Cronin

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Deschênes and Richard, JJ.A.

February 10, 2015.

Summary:

Résumé:

The defendant applied for an order pursuant to rule 33.12, or alternatively, if necessary, rule 32.10, requiring the plaintiff to attend to a continuation of the examination for discovery and, or in the alternative, if necessary, submit to a second examination for discovery, to: (a) answer any and all questions arising out of answers to undertakings and documents produced following the June 8, 2007, examination for discovery; and (b) answer further relevant questions, not already canvassed in the examination for discovery, including, but not limited to, questions as to the plaintiff's current medical condition, treatment, and appointments in the future.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 426 N.B.R.(2d) 202; 1110 A.P.R. 202, held that a continuation of the discovery of the plaintiff was necessary. Accordingly, the court ordered the plaintiff to reattend for a discovery and answer any questions arising out of, and confined to, the undertakings and documents produced since the June 8, 2007, examination. The plaintiff appealed.

The New Brunswick Court of Appeal dismissed the appeal with costs of $2,500 payable to the defendant.

Practice - Topic 4413

Discovery - Order for further examination - The defendant applied for an order pursuant to rule 33.12, or alternatively, if necessary, rule 32.10, requiring the plaintiff to attend to a continuation of the examination for discovery and, or in the alternative, if necessary, submit to a second examination for discovery, to: (a) answer any and all questions arising out of answers to undertakings and documents produced following the June 8, 2007, examination for discovery; and (b) answer further relevant questions, not already canvassed in the examination for discovery, including, but not limited to, questions as to the plaintiff's current medical condition, treatment, and future appointments - The motion judge found that the discovery had not been completed, but rather adjourned subject to further questions which might arise from answers to the various undertakings - It was also submitted that numerous further documents, hundreds of pages, had been submitted after the discovery - It was necessary to continue the examination so that the defendant completely understood the case he had to meet - It might also be important to the defendant to obtain admissions and perhaps to facilitate a settlement - Accordingly, the court ordered the plaintiff to reattend for a discovery and answer any questions arising out of, and confined to, the undertakings and documents produced since the June 8, 2007, examination - The plaintiff appealed - The New Brunswick Court of Appeal dismissed the appeal, holding that the standard of review foreclosed interference with the motion judge's discretionary order.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - [See Practice - Topic 4413 ].

Procédure - Cote 4413

Enquête préalable - Ordonnance de tenue d'une enquête préalable - Ordonnance prescrivant une enquête supplémentaire - [Voir Practice - Topic 4413 ].

Procédure - Cote 8804

Appels - Principes généraux - Devoir d'une Cour d'appel relativement à des ordonnances discrétionnaires - [Voir Practice - Topic 8804 ].

Cases Noticed:

Beaverbrook Canadian Foundation v. Beaverbrook Art Gallery (2006), 302 N.B.R.(2d) 161; 784 A.P.R. 161; 2006 NBCA 75, appld. [para. 1].

Counsel:

Avocats:

George A. McAllister, Q.C., for the appellant;

Jade A. Spalding, for the respondent.

This appeal was heard on February 10, 2015, by Drapeau, C.J.N.B., Deschênes and Richard, JJ.A., of the New Brunswick Court of Appeal, who delivered the following oral decision on the same date.