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Recent Nova Scotia Court of Appeal Decision Regarding Discovery Examinations

The overarching goal of the Civil Procedure Rules in Nova Scotia governing discovery examination is to facilitate just, speedy, and inexpensive resolution of the issue. With this in mind, the Nova Scotia Court of Appeal (NSCA) recently held that a witness may be required to make a sketch or a mark on a map if requested during discovery examination under Rule 18.13(1).

In Delano v Gendron, 2019 NSCA 32, the witness had been asked to make a sketch of an intersection where a motor vehicle accident had taken place, and his lawyer immediately objected. The Court of Appeal held that to allow this objection would be a narrow interpretation of the scope of discovery questions permitted, and would be inconsistent with the just, speedy, and inexpensive resolution of the issue. The NSCA has previously held that it is an error to favour narrow textual analysis over broader contextual analysis in interpreting the Rules of Civil Procedure.

In the reasons for the decision, Derrick J.A. continued to identify a threshold question to determine if the witness should be obliged to provide a sketch or make a mark on a diagram. The issue will turn on if the witness is able to do so. If the witness’ response to the request is that they are unable to provide a sketch or make a mark on a diagram, then this will be a satisfactory answer to the question, and they will not be obliged to do so.

The difference in the situation when a witness replies that they are unable to make the sketch/mark and the facts of Delano v Gendron is that in that case, the witness’ lawyer immediately objected before the witness had the opportunity to reply whether he was able to make such a diagram of the intersection.

Given the decision in Delano v Gendron, it is not appropriate for a lawyer to object to the request that a witness create a sketch or make a mark on a map during discovery examination. The witness will be required to do so pursuant to Rule 18.13(1). However, this obligation is subject to the witness’ response. If they are unable to make a sketch or a mark on a diagram, they will not be required to do so. What will suffice as a reason why the witness cannot produce such a sketch or mark on a map was not discussed in the decision.

One can imagine there will be a spectrum of reasons of not being able to produce a sketch, from mere inability to produce an accurate, to scale, sketch, to physical inability to perform the task. While the court’s goal may have been to ensure a just, speedy and efficient resolution of an issue, it remains to be seen if this will be frustrated by the newly established ability to avoid the request by way of response from the witness that they are unable to do so due to inability to draw a sketch fully to scale.

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