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Examination for Discovery – continuation, conclusion and fast track

If my case is removed from fast track after oral discovery, will I have to go back for another discovery? How does the court determine if a party should be allowed a continuation of discovery?

In the November 10, 2015 judgment in Nordin v. Wong, 2015 BCSC 2356 ( the defendant applied for an order that the plaintiff attend a continuation of her examination for discovery after the claim was removed from fast track. The defendant submitted that they would be prejudiced in the presentation of their defence at trial as the plaintiff had, since the original discovery had been conducted, attempted and failed to return to work at the job which she held at the time of discovery. Madam Justice Scarth dismissed the application relying on the concluding words of the first discovery and the failure of counsel to place conditions on the removal of the case from fast track:

[2]             According to the notice of application, it is brought pursuant to Rule 7‑2(2) and (17). Rule 7‑2(2) provides for examinations of up to seven hours, and Rule 7‑2(17) provides for re‑examination during a discovery. I am not sure of the relevance of that subrule, frankly, but in any event it is the defendant’s position that, given the first examination of the plaintiff was limited to two hours, because the matter was at that time governed by the fast track rule, and given that the plaintiff has, since the discovery was conducted, attempted and failed to return to work at the job which she held at the time of the discovery, and that she has attempted other employment, the defendant should have the opportunity to discover her on those efforts to work. The submission is that otherwise the defendant will be prejudiced in the presentation of his defence at trial.

[3]             The plaintiff opposes the application. In doing so, she relies on the concluding words of the May 2014 discovery, the fact that the case has not materially changed since the first discovery, and the defence delay in bringing this application with the trial only 19 days away. It is the plaintiff’s submission that it is the plaintiff who will be prejudiced if she is required to attend a discovery during the time that should be devoted to trial preparation.

[4]             To the extent that this is an application for a continuation of the examination for discovery which took place in May of 2014, I am satisfied that it should be dismissed. In my view, the discovery in May 2014 was concluded and the decision in Li v. Oneil, 2013 BCSC 1449, is distinguishable on that point.

[5]             Counsel conducting the discovery stated it to be concluded. Responses have been provided to the outstanding document requests, and the defendant here concedes that nothing arises from the material which was so provided. Further, there is no continuation as of right once a matter is removed from fast track:  Brown v. Dhariwal, 2013 BCSC 2419. No conditions were placed on the removal of the action from fast track, apparently it not being in the contemplation of the defendant at the time that they might require a further discovery.

[6]             In my view, therefore, the fact that Rule 7‑2(2) provides for seven hours of discovery does not assist the defendant here.