Judgments

[1997] 2 F.C. 893

T-1096-95

Andersen Consulting (Plaintiff)

v.

Her Majesty the Queen (Defendant)

Indexed as: Andersen Consulting v. Canada (T.D.)

Trial Division, Gibson J.—Ottawa, March 19, 1997.

Judges and Courts — Upon question as to role of counsel at discovery, A.S.P. purporting to lay down general rules of conduct — Federal Court Act, s. 46 vesting power to make rules of Court in rules committee with approval of Governor in Council following legislatively mandated consultative process — Neither judge nor prothonotary having power to make rules of court.

Practice — Discovery — Examination for discovery — Whether person being examined entitled to advice, assistance of counsel — Examinee nominee of defendant (Crown) — Scope of litigation broad, “massive” number of documents — Question not objectionable as constituting cross-examination — In complex litigation with extensive documentation, to ensure discovery as complete as possible, examinee — especially if nominee — must continue to inform himself as lengthy examination progresses — Purpose of discovery — Cross-examination in context of discovery — Words of Steele J. in Kay v. Posluns as to conduct of counsel at discovery adopted.

This was an appeal from the Associate Senior Prothonotary’s directions purporting to set down general rules of conduct on an examination for discovery i.e. that where a person who was not a party is being examined on behalf of a party, the person being examined could consult with counsel during recesses and adjournments for advice and assistance to assemble evidence for the examination and to correct any inaccuracy or deficiency in any answer; counsel for the party could provide, supplement or correct an answer by counsel’s own statement, except where the matter is within the personal knowledge of the person being examined; and counsel should not intervene to advise or assist the person between the time a question is asked and the time the answer is given, other than for the purpose of objecting to a question. The plaintiff was in the course of conducting examinations for discovery of the defendant’s nominee. The scope of the issues in the litigation was broad and the number of documents relevant to the examination for discovery was “massive”. Counsel had fundamentally different views of counsel’s role in relation to the defendant’s nominee on examination for discovery both in and outside the examination room during a long examination.

The issue was whether the Associate Senior Prothonotary had erred in law in deciding as he did.

Held, the appeal should be allowed in part.

Federal Court Rules, Rules 455 to 466.1 deal with examinations for discovery. Neither a judge nor a prothonotary has the jurisdiction to make rules of the Court. Federal Court Act, section 46 vests that authority in the rules committee with the approval of the Governor in Council and following a legislatively mandated consultation process. The Associate Senior Prothonotary erred in law in framing the direction as general rules of conduct for counsel to a person who was not a party to litigation who was being examined for discovery on behalf of a party, rather than as rules of conduct derived from the Federal Court Rules when the facts were applied against those Rules. If appropriately framed against the facts herein, the directions would otherwise be in accordance with law.

Cross-examination on examination for discovery is contemplated by the Federal Court Rules, which provide that objection may not be taken to a question put to the party being examined, merely on the ground that the question is in the nature of cross-examination (Rule 459). But that is not to say that examination for discovery that is in the nature of cross-examination is governed by all of the principles applicable in respect of cross-examination at trial. In particular, the generally accepted principle that counsel may not consult with a person being cross-examined during the course of the cross-examination cannot be extended without reservation to examinations for discovery. To preclude access by counsel to an individual being examined, and the converse, particularly where that individual is a nominee rather than a party and the range of the examination for discovery is broad and detailed, would work against the principles governing examination for discovery.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 46 (as am. by S.C. 1990, c. 8, s. 14; 1992, c. 1, s. 68).

Federal Court Rules, C.R.C., c. 663, RR. 319 (as am. by SOR/88-221, s. 4), 327, 455 (as am. by SOR/90-846, s. 15), 456 (as am. idem), 457 (as am. idem), 458 (as am. idem), 459 (as am. idem), 460 (as am. idem), 461 (as am. idem), 462 (as am. idem), 463 (as am. idem), 464 (as am. idem), 465 (as am. idem), 465.1 (as enacted idem), 465.2 (as enacted idem), 465.3 (as enacted idem), 465.4 (as enacted idem), 465.5 (as enacted idem), 466, 466.1 (as am. idem, s. 16).

Rules of Civil Procedure, O. Reg. 560/84, R. 34.12.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 34.12.

CASES JUDICIALLY CONSIDERED

APPLIED:

Champion Truck Bodies Ltd. v. R., [1986] 3 F.C. 245 (1986), 6 F.T.R. 63 (T.D.); Kay v. Posluns (1989), 71 O.R. (2d) 238 (H.C.).

DISTINGUISHED:

Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 [1993] 1 C.T.C. 186; (1993), 93 DTC 5080; 149 N.R. 273 (C.A.); James River Corp. of Virginia v. Hallmark Cards, Inc., [1997] F.C.J. No. 152 (T.D.) (QL).

CONSIDERED:

Crestbrook Forest Industries Ltd. v. Canada, [1993] 3 F.C. 251 [1993] 2 C.T.C. 9; (1993), 93 DTC 5186; 153 N.R. 122 (C.A.).

REFERRED TO:

McLeod et al. v. Canadian Newspapers Co. Ltd. et al. (1987), 58 O.R. (2d) 721; 15 C.P.C. (2d) 151 (S.C.).

AUTHORS CITED

Holmested and Watson: Ontario Civil Procedure, vol. 3. G. D. Watson and C. Perkins, eds. Scarborough, Ont.: Carswell, 1993.

APPEAL from Associate Senior Prothonotary’s directions concerning the role of counsel during examination for discovery of a person who was not a party. Appeal allowed in so far as the direction was framed as general rules of conduct.

COUNSEL:

Thomas G. Heintzman, Q.C. for plaintiff.

Duff Friesen, Q.C. for defendant.

SOLICITORS:

McCarthy Tétrault, Ottawa, for plaintiff.

Deputy Attorney General of Canada for defendant.

The following are the reasons for order rendered in English by

Gibson J.: By notice of motion filed September 23, 1996 and purportedly brought pursuant to Rules 319 and 327 of the Federal Court Rules,[1] the defendant sought directions

… as to whether a person being examined for discovery is entitled, before the examination is concluded, without interfering with the proper conduct of the examination, to have the advice and assistance of counsel:

(a)  to obtain information for the purpose of answering any proper question that has been put to the person in the examination; and

(b)  to correct any inaccuracy or deficiency in any answer given [by] the person during the examination.

The motion was heard by Associate Senior Prothonotary Giles, at Ottawa, on September 27, 1996. On November 29, 1996, “as of” September 27, the Associate Senior Prothonotary signed an order in the following terms:

IT IS HEREBY ORDERED THAT, where a person who is not a party to litigation is being examined for discovery on behalf of a party:

1.   the person being examined may consult with counsel during recesses and adjournments for advice and assistance:

a)   to assemble evidence for the examination; and

b)   to correct any inaccuracy or deficiency in any answer given by the person during the examination;

2.   it is in order for counsel for the party to provide, supplement or correct an answer by counsel’s own statement, except where the matter is within the personal knowledge of the person being examined; and

3.   counsel should not intervene to advise or assist the person between the time a question is asked and the time the answer is given, other than for the purpose of objecting to a question.

Costs in the cause.

These reasons arise out of an appeal of the order of the Associate Senior Prothonotary. Counsel appearing on the appeal were in agreement that the only issue on appeal was whether or not the Associate Senior Prothonotary erred in law in deciding as he did and that therefore the principles applicable on an appeal of a prothonotary’s discretionary order that are enunciated in Canada v. Aqua-Gem Investments Ltd.[2] do not apply. Rather, as Mr. Justice MacGuigan stated, at page 464 of the Aqua-Gem decision:

(Error of law is, of course, always a reason for intervention by a judge, …).

In James River Corp. of Virginia v. Hallmark Cards, Inc.,[3] Madam Justice Reed, at paragraphs 5-7 of her reasons, examined the question of what decisions of prothonotaries could be said to be discretionary ones. She concluded that an order with respect to the giving of answers on discovery is a discretionary order. Nonetheless, the facts of the matter that was before Madam Justice Reed did not relate to the role of counsel during discovery. I will therefore treat the question on this appeal as one of error of law rather than error in the exercise of discretion.

The facts underlying the application to the Associate Senior Prothonotary may be briefly summarized as follows.

In this action, the plaintiff is claiming a declaration of entitlement to payment for time and expenses incurred in competing for a major government procurement contract, a further declaration of entitlement arising out of changes allegedly required to be made to remain in the competition, damages for breach of contract and negligence or, in the alternative, unjust enrichment, punitive and exemplary damages and pre- and post-judgment interest, as well as costs of the action. The amounts claimed are very substantial.

The plaintiff is in the course of conducting examinations for discovery of Dr. H. Bruce Harland, the nominee of the defendant for that purpose. The scope of the issues in the litigation is broad. In the result, the number of documents relevant to the examination for discovery of Dr. Harland is, in the words of counsel for the defendant, “massive”. During the course of examinations for discovery, counsel for the defendant has, with the consent of counsel for the plaintiff shown a document to Dr. Harland to assist him in answering. Counsel for the defendant attempted to draw a specific contract provision and, on another occasion, notes, to the attention of the witness, with counsel for the plaintiff objecting in each case. Counsel for the defendant interjected during the course of the examination, other than to object to a question, advised the witness not to answer questions that were in the nature of cross-examination and advised the witness not to answer a question where counsel for the plaintiff would not consent to counsel drawing certain documents to the attention of the witness before answering. Counsel for the plaintiff objected to communication occurring between the witness and other persons, other than counsel, in the examination room. Counsel for the plaintiff further objected to counsel for the defendant consulting with the witness, regarding evidence that the witness had given, or was about to give, during recesses and other breaks in the examination for discovery. Counsel for the defendant acknowledged that, during such times, he was discussing with the witness the evidence that had been given and that would be given and that counsel intended to continue doing so.

Thus, it became apparent that counsel had fundamentally different views of the role of counsel in relation to the defendant’s nominee on examination for discovery both in and outside the examination room during the course of a long examination.

Under the authority of section 46 of the Federal Court Act,[4] the rules committee of the Court, with the approval of the Governor in Council, and after publication in the Canada Gazette and provision of a reasonable opportunity for interested parties to make representations, has adopted reasonably extensive rules on the subject of examinations for discovery. These are Rules 455 to 466.1 [RR. 455-465 (as am. by SOR/90-846, s. 15), 465.1-465.5 (as enacted idem), 466.1 (as am. idem, s. 16)].

Subsection 456(3) of the Rules provides for the examination on behalf of the Crown of an “informed officer”. That Dr. Harland is such an “informed officer” is apparently not in dispute in this matter. Subsection 458(1) of the Rules requires a person being examined for discovery to answer relevant questions “to the best of the person’s knowledge, information and belief”. Subsection 458(2) of the Rules requires a person who is to be examined, prior to the examination, to “become informed by making all reasonable inquiries of any present or former officer, servant, agent or employee … who might reasonably be expected to have knowledge relating to any matter in question in the action.” Rule 459 lists classes of questions that may be objected to and that may not be objected to. Specifically, a question may not be objected to “on the grounds that … the question constitutes cross-examination, unless the question is for the sole purpose of testing a person’s credibility”. Rule 460 provides for correction, in writing, of answers given during the course of examination for discovery that are discovered to be inaccurate or deficient. Rule 461 provides for a remedy where a person does not comply with the foregoing rules or interferes with the proper conduct of an examination for discovery. Subsection 465.2 (1) of the Rules provides that a person who is required to inform himself or herself pursuant to subsection 458(2) and who does not do so may be required to become better informed. Rules 465.3 provides for answers by a solicitor on behalf of the person being examined, “unless the examining party objects” [underlining added].

In Crestbrook Forest Industries Ltd. v. Canada[5], Chief Justice Isaac wrote, at page 265:

An historical outline of the evolution of the discovery process (including the practice of examining corporate parties through their officers) can be found in the judgment of Osler J. A. in Leitch v. Grand Trunk R. W. Co. (1890), 13 P.R. 369 (Ont. C.A.), but in Irish Shipping Ltd. v. The Queen, [1974] 1 F.C. 445 (T.D.), Collier J. succinctly captured the rationale underlying the framing of the rules pertaining to examination for discovery in such broad language. At page 449, he said:

The tendency in the Courts of this country in recent years has been to provide all litigants with full and complete discovery prior to trial and to remove as much as possible what used to be known as the “ambush” tactics of the adversary system. In my view that is the general intention of the Federal Court Rules.

Similarly, in Champion Truck Bodies Ltd. v. R., [1986] 3 F.C. 245 (T.D.) Strayer J. said at page 247:

It is in the interests of justice that examinations for discovery should be complete and this implies that the questioning should be as relevant as possible. The object is to explore fully the issues raised by the pleadings, to understand the position of the party being examined and to gain admissions from him. This is all in furtherance of the goal of narrowing the issues and reducing as much as possible matters to be determined at trial.

It appears to me to be a necessary inference from the quotation from Champion Truck Bodies Ltd. v. R. [[1986] 3 F.C. 245 (T.D.)] that, in complex litigation involving extensive documentary background such as here, to ensure that examinations for discovery are as complete as possible, particularly where, again as here, the individual being examined is a nominee not necessarily himself or herself familiar by reason of his or her own knowledge with all of the information on which he or she might be questioned, subsection 458(2) of the Rules and Rule 465.2 must be read to imply that the individual being examined must, during the course of a long examination for discovery, continue to inform himself or herself as the examination progresses. This, of course, begs the question that was here before the Associate Senior Prothonotary of the role of counsel in that process.

It is trite to say that neither a judge nor a prothonotary of this Court has the jurisdiction to make rules of the Court. As indicated earlier, that authority is vested in the rules committee with the approval of the Governor in Council and following a legislatively mandated consultation process. I am satisfied that a direction of the nature here under appeal, which purports to set down general rules of conduct on an examination for discovery rather than rules of conduct derived from the Federal Court Rules themselves when the facts of a particular case are applied against those Rules, offends against that principle and constitutes an error of law. Thus, I conclude that the learned Associate Senior Prothonotary erred in law in framing the direction here under appeal in the way in which he did, that is, as general rules of conduct for counsel to a person who is not a party to litigation and is being examined for discovery on behalf of a party. But this conclusion begs the question of whether, if appropriately framed against the facts of this matter, the directions provided by the Associate Senior Prothonotary would otherwise be in accordance with law. I conclude that they would.

In Kay v. Posluns,[6] a matter giving rise to issues under the Ontario Rules of Civil Procedure[7] which are, for the purposes of this matter, similar to the Federal Court Rules on examination for discovery, Mr. Justice Steele wrote, at pages 240-241 in describing the background to the motion before him:

Counsel for Posluns Group commenced the discovery of James Kay and pursued it for five days when he refused to continue on the basis that James Kay was refusing to answer proper questions, and that Kay’s counsel was unduly interfering with the conduct of the discovery. This motion … requests the re-attendance of James Kay for discovery and to answer questions that had been objected to and to be cross-examined on his affidavit of documents. It also requests directions concerning the continued examination ….

…

The problems at the discovery arose primarily from the opposing views of counsel as to what evidence was relevant to the issues in the actions and therefore the scope of the questioning. In addition, counsel disagreed as to the proper method of conducting a discovery under the rules, particularly the degree of cross-examination permissible, and the proper function of counsel for the party being examined.

Thus, some of the issues that were before Mr. Justice Steele were equivalent to those arising on this matter although the issue of involvement of counsel with the individual being examined, during breaks in the examination for discovery, was not before Mr. Justice Steele. Mr. Justice Steele wrote, at page 243:

The purpose of production and discovery is for the three principal purposes stated in Modriski v. Arnold, [1947] O.W.N. 483 at p. 484 …:

1. to enable the examining party to know the case he has to meet;

2. to enable him to procure admissions which will dispense with other formal proof of his own case; or

3. to procure admissions which will destroy his opponent’s case.

In order to achieve the above, it is important that all relevant documents be produced, and that a person being discovered has informed himself so that he can give intelligent statements relating to the case.

Thus, the purpose of discovery adopted by Mr. Justice Steele is not substantially at variance with that enunciated by Strayer J., as he then was, and adopted by Chief Justice Isaac in the quotation from Crestbrook Forest Industries Ltd., appearing above. Mr. Justice Steele goes on to consider cross-examination in the context of discovery. He states, at page 244:

The purpose of cross-examination at trial is to explore the evidence that the witness has given in chief and to test his credibility, and also to raise any new matters. On discovery, the party being examined has not given evidence in chief. Therefore, the purpose of any cross-examination is to raise new matters.

He refers to amendments to the Ontario Rules dealing with discovery by reference to the following passage from Holmested and Watson: Ontario Civil Procedure,[8] vol. 3, at page 31-64 and quotes the following passage in the context of a more extensive quotation:

In changing the cross-examination rule, the rule-makers were more interested in removing it as an objection than in encouraging the turning of examination for discovery into full-scale cross-examination. This is reflected in the formulation of rule 31.06(1)(b)—it removes cross-examination as a ground of objection rather than specifically authorizing or encouraging cross-examination.

The same might be said of the formulation of subsection 459(2) of the Federal Court Rules. Mr. Justice Steele concludes [at page 245]:

I adopt the statement in Holmested and Watson, … that the rule “… removes cross-examination as a ground of objection rather than specifically authorizing or encouraging cross-examination”. In Ontario it is not cross-examination in the true sense.

As to conduct of counsel at an examination for discovery, Mr. Justice Steele writes, at pages 246-247:

Discovery is not presided over by a judge or master. Counsel for the parties are entitled to be present and must conduct themselves as officers of the court and with mutual respect. I agree with Master Sandler in the McLeod case … where he stated, at pp. 726-7 as follows:

There is no doubt that a party is entitled to have a lawyer present on discovery to give legal assistance to the party being examined. But that assistance is to consist of the lawyer listening to the particular question and deciding whether the question is proper, or improper because it is irrelevant, or invades solicitor-client privilege, or is confusing or incomprehensible, or is otherwise improper, and if so, taking an objection to the question on the record in the manner contemplated by rule 34.12.[9]

To effect this, counsel doing the examination must co-operate with the other counsel present so that they (as well as the party being examined) can understand the questions. This may impede the style or conduct that the examining counsel wishes to pursue but it is a necessary imposition.

On the other hand, counsel for the party or parties present must not interfere any more than is necessary in order to perform their proper function. They must not answer the question for a party unless there is no objection (see rule 31.08), even if the answer given by the party is wrong.[10]

The duty to correct answers under rule 31.09 is on the party, not his counsel. It also contemplates that the obligation is after the completion of the examination, not during it. If a party has given an incorrect or confusing answer, his counsel may endeavour to correct or clarify it on re-examination, as permitted by rule 34.11. Often it may be more desirable to correct an error at the time it is made, but if the examining counsel objects, than it must be corrected in accordance with the rules. Otherwise such interjections by counsel for the party may interrupt the proper flow of the examination. If objection is taken to a question, an argument should not ensue on the record of the discovery.[11]

I am satisfied that the foregoing summary of appropriate conduct on examination for discovery in matters before Ontario courts applies equally to matters before this Court.

Finally, Mr. Justice Steele returns briefly to the issue of cross-examination during discovery. At page 254 he states:

At trial, a party has given evidence in chief, and on cross-examination he will be deemed to be familiar with it. On discovery new issues are put to the party, and it may take both him and his counsel time to familiarize themselves with the documents before answering. However, this delay to understand must not be used merely as an excuse to slow down the discovery for the purpose of giving the party being discovered time to fabricate his answer.

Once again, I am satisfied that the same can be said of examinations for discovery before this Court. Cross-examination on examination for discovery is clearly, if obliquely, contemplated by the Federal Court Rules which provide that objection may not be taken to a question put to the party being examined, merely on the ground that the question is in the nature of cross-examination. But that is not to say that examination for discovery that is in the nature of cross-examination is governed by all of the principles applicable in respect of cross-examination at trial. In particular, the generally accepted principle that counsel may not consult with a person being cross-examined during the course of the cross-examination cannot, I conclude, be extended without reservation to examinations for discovery. To preclude access by counsel to an individual being examined, and the converse, particularly where that individual is a nominee rather than a party and the range of the examination for discovery is broad and detailed, would work against the principles governing examination for discovery quoted earlier from the Crestbrook Forest Industries Ltd. decision.

Against the foregoing analysis, I will allow this appeal in part, strike out the substantive part of the order of the Associate Senior Prothonotary here under appeal and substitute the following:

It is hereby ordered that, on the examination for discovery of Dr. H. Bruce Harland on behalf of the Defendant in this matter:

1. Dr. Harland may consult with counsel during recesses and adjournments for advice and assistance;

(a) to assemble evidence for examination; and

(b) to correct any accuracy or deficiency in any answer given by him during the examination;

2. In accordance with Federal Court Rule 465.3, counsel appearing with Dr. Harland on the examination for discovery may answer a question on behalf of Dr. Harland during the examination, unless the examining party, or counsel on its behalf, objects; and

3. Counsel appearing with Dr. Harland should not intervene to advise or assist Dr. Harland between the time a question is asked and the time the answer is given, other than for the purpose of objecting to a question or with the consent of the examining party or counsel for that party.

The Associate Senior Prothonotary provided that costs of the motion before him should be in the cause. Costs of that motion, and of this appeal, shall be in the cause.

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