PRACTICE |
Discovery |
Examination for Discovery |
Pinkney v. Canada
T-2120-01
2002 FCT 2009, Hargrave P.
19/11/02
9 pp.
Motion for oral examination for discovery of more than one person on grounds no one individual having first-hand knowledge of events occurring on three different days-- Federal Court Rules, 1998, r. 237(2) providing Attorney General of Canada to select when representative of Crown to be examined on discovery--R. 235 limiting discovery, except with leave of Court, to discovery of adverse party only once--R. 237(3) providing Court may order some other representative of Crown to be examined for discovery--Court dealing with aspect of discovery of another representative by referring to both Federal Court, British Columbia cases--R. 241 placing obligation on discovery witness to inform herself or himself, before examination, by making enquiries of present or former officers, servants, agents or employees--As set out in Crestbrook Forest Industries Ltd. v. Canada, [1993] 3 F.C. 251 (C.A.), discovery witness required to use best efforts to obtain information from third parties--Plaintiff seeking additional discovery witnesses at least in part to demonstrate how alleged obstruction to justice occurred--In Newfoundland Processing Ltd. v. "South Angela" (The) (1988), 24 F.T.R. 116 (F.C.T.D.), Court stated discovery serves purpose of obtaining facts relevant to pleadings; discovery not to degenerate into fishing expedition through examination of number of witnesses--Factors to be considered in applying for a second discovery witness set out--Given high cost of litigation, examining party ought to be able to apply for second discovery, in effect substitution of witness, as soon as counsel feels he or she can make case--Conclusion of first discovery not required before applying for second witness--Therefore, motion for multiple discoveries premature as no one has yet been examined for discovery--Thus, plaintiff unable to show Crown's witness incapable of giving required evidence--Motion dismissed-- Federal Court Rules, 1998, SOR/98-106, rr. 235, 237(2), (3), 241.