Pinkney v. Canada, 2002 FCT 2009

Date: 20021119

Docket: T-2120-01

Neutral citation: 2002 FCT 2009

BETWEEN:

                                                                 JOHN R. PINKNEY

                                                                                                                                                         Plaintiff

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                   Defendant

                                                            REASONS FOR ORDER

HARGRAVE P.

[1]                  These reasons arise out of the Plaintiff's motion for oral examination of discover of more than one person, the grounds being that no one individual has first-hand knowledge of events that occurred on three different days.

[2]                  The counsel for the Defendant has advised the Plaintiff that the Defendant will select one Crown representative to be examined for discovery. That person will be an employee of the Correctional Services of Canada, who has either first-hand knowledge, or who will inform himself of the relevant facts.

CONSIDERATION

[3]                  Rule 237(2) provides that when the Crown is to be examined on discovery it is for the Attorney General of Canada to select a representative.

[4]                  Rule 235 limits discovery, except with leave of the Court, to discovery of an adverse party only once. Rule 237(3) provides that the Court may, on motion by the examining party, order some other representative of the Crown be examined for discovery. The relevant portions of the rules are as follows:

I shall also set out a predecessor rule to Rule 235, which was replaced in 1990, being Rule 465(19):

[5]                  I have set out the old rule for the purpose of comparison. Rule 465(19) required, before there might be a second discovery, that the case be an exceptional one and that there be a special reason. These requirements were dropped when the rules as to discovery were amended in 1990. The 1990 amendments are similar to the 1998 rules which are now in effect. Thus pre-1990 Federal Court cases must be used with care. Having said that I will first refer, as I did in Liebmann v. Canada (Minister of National Defence) (1996), 110 F.T.R. 284, to what is still the current general principle as to examination for discovery. This was set out by Mr Justice Strayer, as he was then, in Dillingham Construction Ltd. v. Standard Telefon OG Kabelfabrik A/S (1987), 11 F.T.R. 223 at 224:

I will deal with the aspect of discovery of another representative by referring to both Federal Court and to British Columbia cases.

[6]                  To begin, Mr Justice Hugessen, as he now is, pointed out in Lubrizol Corporation v. Imperial Oil Ltd. (2000), 184 F.T.R. 102 (F.C.T.D.) that in a complex matter no one person can know all of the relevant facts: "one cannot expect that any one witness will be fully informed on every aspect of the case...", but went on to point out that the witness in question was informed on at least one aspect of the case and was in a position to obtain further information and furnish it to the other side (see page 103).

[7]                  Rule 241 places an obligation on a discovery witness to inform herself or himself, before the examination, by making enquiries of present or former officers, servants, agents or employees. While a witness is not bound to enquire where the effort, time involved, trouble, expense and difficulty of the enquiry outweighs the usefulness of any answer (see Hayden Manufacturing Co. Ltd. v. Canplas Industries Ltd. (1998), 173 F.T.R. 229 at 234 - 235, a discovery witness is required to use best efforts to obtain information from third parties (Crestbrook Forest Industries Ltd. v. Canada (Minister of National Revenue), [1993] 3 F.C. 251 at 265 - 266 (F.C.A.), leave to appeal refused (1993), 163 N.R. 320). I now turn to consideration of some useful British Columbia cases which deal with Rule 27(5)(c) providing for the examination for discovery of a second person, with leave of the court.

[8]                  In Morrison-Knudsen Company Inc. v. B.C. Hydro and Power Authority (1970), 75 W.W.R.757, the B.C. Court of Appeal considered whether an officer of a company ought to be sent back to fully inform himself, or whether it might be more convenient and practical to have someone else. The Court of Appeal used the analogy of a case involving a motor vehicle accident:

In Morrison-Knudsen the Chief Justice did suggest a pragmatic alternative to second-hand evidence, being production for discovery the person actually involved. While it is premature to decide that point, the Crown's witness having not yet been examined, both sides should keep the suggestion of the chief Justice, in Morrison-Knudsen, in mind.

[9]                  Mr Pinkney, in the grounds referred to in his Notice of Motion, seeks the additional discovery witnesses at least in part to demonstrate how an alleged obstruction to justice occurred. Mr Pinkney will have to keep in mind that discovery is not a fishing expedition. Here refer to the decision of Mr Justice Bouck, of the B.C. Supreme Court who considered various authorities as to the examination of a second witness for discovery in Aintree Investments Ltd. v. West Vancouver (1977), 5 B.C.L.R. 216. Among the factors that he considered, bearing on a second witness, were expense and whether a subsequent discovery should be restricted where its purpose seemed predominantly that of a fishing expedition.

[10]            This concept, that discovery is to obtain facts, relevant to pleadings, and that the discovery is not to be degenerated into a fishing expedition, through the examination of a number of witnesses, is a point made by Mr Justice Teitelbaum in Newfoundland Processing Ltd. v. The "South Angela" (1988), 24 F.T.R. 116 at 120.

[11]            In Bland v. International Sealand Shipping Service Ltd. (1979), 18 B.C.L.R. 40 (B.C.S.C.) Mr. Justice Bouck denied an application for the examination of a second officer of the defendant company. Relying upon Ball v. B.C. Electric Co. Ltd. (1951), 4 W.W.R. (N.S.) 478 (B.C.S.C.), he observed that the party wishing the second witness must show that the initial witness is incapable of giving the required evidence either through his own knowledge or by informing himself.

[12]            In Lord v. Royal Columbian Hospital (1981), 43 B.C.L.R. 147 (B.C.C.A.) the court noted that the purpose of examination for discovery was not to provide an opportunity to examine all of the witnesses who might have relevant knowledge, but rather it was ". . . for counsel applying for the additional examination to satisfy the judge in chambers that the witness being examined for discovery on behalf of the adverse party cannot satisfactorily inform himself or herself about the subject of the examination for discovery." (p. 150).

[13]            This concept that a second witness is not available until the first witness demonstrates that he or she cannot satisfactorily become informed, is one considered in Richter Gedeon Vegyészeti Gyar Rt v. Merck & Co. (1995), 185 N.R. 88 at 91. There the Federal Court of Appeal said that until the first witness had demonstrated, during the examination for discovery, that he or she was not an informed person, an examining party could not invoke the benefit of the Federal Court Rule which allow further discovery. In Richter Gedeon the Court of Appeal went on to make a point that is applicable here:

The Court of Appeal here refers to what was, in its view, a premature motion for discovery of certain additional named persons, the discovery having not been commenced.

[14]            As a guide to the parties and in anticipation of what might well transpire on discovery, I will set out the factors to be considered in applying for a second discovery witness and will touch upon the issue of whether a discovery ought to go through to a complete conclusion before the examining party is entitled to apply for a second witness.

[15]            In Rogers v. Bank of Montreal (1986), 1 B.C.L.R. (2d) 132, Mr. Justice Macdonald of the B.C. Supreme Court considered an application for discovery of a second representative of the defendant bank. He noted that there was a difference of judicial opinion as to whether or not, as a condition precedent, the first examination must have been completed.

[16]            My own view is that given the high cost of litigation an examining party ought to be able to apply for a second discovery, in effect the substitution of a witness, as soon as counsel feels he or she can make the case. I believe this view is borne out by the Chief Justice's comment in Richter Gedeon:

I note that the Chief Justice uses the phrase "... during the examination for discovery" and this indicates to me that a discovery need not be concluded before applying for a second witness.

CONCLUSION

[17]            This motion for multiple discoveries is premature, for no one has yet been examined for discovery. Thus Mr Pinkney is unable to show that the Crown's witness is incapable of giving the required evidence. Mr Pinkney will have to proceed with the discovery of a witness to be nominated by the Crown. At least initially Mr Pinkney will have to be satisfied that a discovery witness has an obligation to use best efforts to become informed. Only if and when Mr Pinkney feels that he can make a case for a second witness, should he make an application for a second discovery witness.

[18]            Costs to the Defendant, in any event, in the lump sum of $200.00.

(Sgd.) "John A. Hargrave"

                                                                                               Prothonotary

Vancouver, British Columbia

19 November 2002

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES

DOCKET:                                            T-2120-01

STYLE OF CAUSE:                        John R. Pinkney v. Her Majesty the Queen

REASONS FOR ORDER OF: Hargrave P.

DATED:                                                19 November 2002

WRITTEN REPRESENTATIONS BY:                              

John R Pinkney                                                                           PLAINTIFF

Malcolm Palmer                                                                          FOR DEFENDANT

SOLICITORS ON THE RECORD:

John R Pinkney                                                                           PLAINTIFF on his own behalf

Vancouver, British Columbia

Morris A Rosenberg                                                                  FOR DEFENDANT

Deputy Attorney General of Canada

Department of Justice

Vancouver, British Columbia