It’s easy to agree that relevance is the cornerstone of disclosure during an examination for discovery. It’s not always as easy for all parties to agree on the scope of relevance, but Justice Heeney laid down the law in his recent motion decision, Amsinga v Anderson, 2020 ONSC 6552.

The plaintiffs are husband and wife. The husband was driving a motorcycle with his wife riding as a passenger when they were involved in a motor vehicle accident with the defendant. The defendant counterclaimed against the husband for contribution and indemnity for the wife’s claim. The husband, as defendant by counterclaim, defended the entire claim and not just the counterclaim.

At the examination for discovery, plaintiffs’ counsel refused to let the husband answer questions regarding his wife’s pre- and post-accident condition and impairments, her employment, and his observations of his wife on the day of the accident. Plaintiffs’ counsel refused these requests on the basis that the wife’s health and damages are not an issue in dispute as between the husband and the defendant and therefore outside of the scope of his examination for discovery. In other words, plaintiffs’ counsel argued that the husband was being asked questions as a witness and not as a party, which he cannot be compelled to answer. The defendant disagreed and maintained that these questions were clearly relevant to the issues in the action.

The plaintiffs relied on older case law that was decided under the old Rules of Practice which only provided for the general right to examine any party adverse in interest. The new Rules includes the new provision of s.31.06(1) which delineates a broader scope of examination: “A person examined for discovery shall answer, to the best of his or her knowledge, information and belief, any proper question relevant to any matter in issue in the action” [emphasis added]. The new Rules do not contain any limitation for examination to issues between the examining party and the party being examined.

Justice Heeney confirmed that the modern approach to discovery favours full disclosure and discourages trial by ambush. The questions asked of the husband were clearly relevant to issues that were raised in the action, even though they related only to one co-plaintiff and not the other. From a common sense perspective, the party being examined is most likely to testify at trial on its own behalf. That same party is also a potential witness for other parties.

On top of all that, the husband’s Statement of Defence to the Counterclaim challenged the damages claim made by his wife and this was found to make the issue of her damages relevant to the claim against him. Having said that, a broad scope of discovery would likely permit these types of questions regardless of the existence of a counterclaim.

Typically when a counterclaim is issued, the plaintiffs each obtain their own counsel to protect interests which now may conflict. Here, the plaintiffs continued to share counsel, which is perhaps why this dispute arose. Regardless, the broad scope of modern discoveries means that private family matters are likely not going to stay private in litigation when litigants are related.

Maia Abbas is a member of the Loss Transfer and Priority Disputes practice group and author of this blog. If you have a question about this decision or a similar file, please contact Maia at 416-777-5205.