Examinations for discovery are an essential and critically important part of the pre-trial process. They allow the parties to the lawsuit to gain admissions, prove documents, define the true issues and provide guidance on how to best move the case forward.
There is no dispute that the lawyers for both parties can attend along with the party being examined. However, what of the other party, or parties? What of persons of support or experts?
The Rules of Practice authorizing examinations do not provide the answers. Any guidance must be found in the case law. Further, it must be understood that examinations are private, not public affairs. People get to attend for need, not interest. The need is based on the purposes of an examination which is the efficiency of the process, an unbiased disclosure and the proper representation of the examing party.
The opposite parties have an almost absolute right to attend. They will only be prohibited from attending for a cause. The reasons for such a prohibition are not fixed but historically have been due to the likelihood of intimidation or of tailored evidence.
Intimidation is fairly easy to understand but harder to prove when seeking to exclude a party from attending. It must be more than apprehension and must likely be based on some past conduct.
Tailored evidence is clearly a concern. If the other parties get to see and hear their adversary give evidence the fear is that they can then tailor their evidence when later examined. There is little doubt that evidence given freshly and without such an advantage is more valuable to the other side. That’s why witnesses are excluded at trial before they give their evidence. This concern often leads to a dispute about who can exam first and thereby allow their client to have this advantage.
There is no right for any third party to attend and be present during an examination for discovery unless they are there with the consent of the other parties or with a court-ordered invitation. An invitation will only be granted where it can be shown to the court that the third parties presence is necessary to enable the proper representation of the examing party.
Examinations are extremely stressful. Despite preparation, some parties experience great difficulty getting to and through their examination. Where it is shown that a support person's presence is warranted, they will be permitted to attend. This is usually based on some evidence of anxiety or other symptomology of distress at a higher level than the average person. If so then a friend, family member, etc will be permitted to accompany the witness to allow them to get through the examination.
The right of experts to attend is often consensual. If there is a dispute, their right to attend again depends on the legitimate needs of the examing party. If the subject matter of the dispute is technical or scientific, especially in esoteric and complex matters, the order is likely to be granted. Other examples would be where the expert has made an extensive review of the documents such as an accountant in a financial dispute.
It must be recognized that any expert who attends the examinations is thereby disqualified from testifying at the trial of the matter.
At Wise Health Law, we draw on more than 30 years of combined health law and litigation experience to provide clients with superior legal guidance and representation. For questions about examinations for discovery and related topics, contact the health lawyers at Wise Health Law for forward-thinking and expert advice about health law matters and related litigation. Contact us online, or at 416-915-4234for a consultation.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).