Examination for Discovery - In B.C., or Elsewhere? (5 minute read)

June 10, 2016

Examination for Discovery – In B.C., or Elsewhere? (5 minute read)

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For proceedings in the British Columbia Supreme Court, examinations for discovery typically happen somewhere in B.C. That’s not a requirement though – if the parties agree, an examination can be conducted just about anywhere in the world.   But what happens when the person who has to be examined doesn’t live in B.C. and doesn’t necessarily want to travel to B.C. to be examined?

Even though there is a combination of Rules that appears to answer this question, from 2008 to 2014 the issue was often addressed by referring to the case of Bronson v. Hewitt, 2008 BCSC 1269where the court found that “the default position is that non-resident parties are entitled to be examined at their place of residence” (para. 10).  However, in the last couple of years, a different position has emerged: that even when a party resides outside of British Columbia, the default location for an examination for discovery is British Columbia – unless the court finds that it is “just and convenient” to order that the examination occur somewhere else.

This more recent position emerges from the analysis found in Le Soleil Hotel & Suites Ltd. v. Le Soleil Management Inc., 2007 BCSC 2049 and First Majestic Silver Corp. v. Santos, 2014 BCSC 1564.  It was also applied very recently in the case of Huang v. Silvercorp Metals Inc.,  2016 BCSC 778, a decision that was released on April 20, 2016. In Huang, the court says this:

[10]        Although the Banque Indosuez line of authority was referred to, the Court of Appeal [in Moses v. Kim, 2009 BCCA 82 – ed.] did not say that there is a presumptive right of a witness who resides outside of British Columbia to be examined where they reside or that a strong showing of injustice is required to defeat that right.  To the contrary, what was said was that the court has a wide discretion to be exercised on the basis of what is just and convenient to both parties.

[11]        Second, I do not agree that the First Majestic line of authority was based on a misreading of, or a failure to consider, the earlier Banque Indosuezcase.  In Le Soleil, at para. 24, the Court expressly articulated the test as it was expressed in Banque Indosuez.  Although the Court did not refer specifically to that case, it is clear that the cases expressly mentioned were not the only authorities the Court considered.  The same is true of the Court’s reasons in First Majestic (see para. 79).  The holding in Banque Indosuez flowed from the view that the emphasis in the applicable Rule was on where the person to be examined resides.  This ignores the express direction in the Rule that the examination is to take place “within 30 kilometres of the registry that is nearest to the place where the person to be examined resides”, and that as far as practicable the Rule applies to a person residing outside British Columbia.

[12]        I acknowledge Silvercorp’s submission that the definition of “registry” in Rule 1‑1 has changed, but in my view the change does not affect the analysis.  The result of the change is simply that the definition of “registry” in Rule 1‑1 does not apply where the word is not used in relation to a proceeding.  However, the word “registry” in Rule 7-2(11) must still be construed in relation to the Rules as a whole.  When the Rules are read as a whole, the word “registry” clearly means a registry of the Supreme Court.  Among other things, Rule 1‑1(2) provides that unless a contrary intention appears, the interpretation section of the Supreme Court Act applies to the Rules.  The Supreme Court Act, R.S.B.C. 1996, c. 443, defines registry “as an office of the Supreme Court in a judicial district”.

[13]        Third, and flowing from what I have just said about the meaning of the word “registry”, the emphasis in the Banque Indosuez line of authority on the place where the person to be examined resides is, in my view, based on a misreading of the Rule.  As Madam Justice Dickson said in Le Soleil at para. 26:

Given that by definition the “Registry” is located in British Columbia, the starting point for analysis … is that a non-resident party is to be examined within the province although, if it is just and convenient, the court can order otherwise.

[14]        Where judgments of the court conflict, a judge who must choose between them should follow the judgment that is later in time if that judgment was pronounced following a full consideration of the earlier judgment:  Andermatt v. Tahmasebpour

, 2015 BCSC 1743 (CanLII) at para. 51.  The judgment in First Majestic is the most recent decision, and, in my view, it was pronounced following a full consideration of the reasoning in Le Soleil, which in turn fully considered the reasoning in the other line of authorities.  Further it is consistent with the Court of Appeal’s decision in Moses v. Kim.

[15]        For these reasons, it is my view that the starting point for the analysis is that a non‑resident witness is to be examined within the province although the court has a wide discretion to order otherwise based on what is just and convenient to both parties.  In any event, if there was a presumption in favour of Silvercorp’s position, it is my view that the presumption has been rebutted because it is overwhelming just and convenient for Dr. Feng’s examination to be held in Vancouver.

In my view, Huang is consistent with the analysis in Le Soleil, Moses, and First Majestic – so it seems clear now that the default location for examination for discovery is British Columbia, even in cases where a party resides outside the Province or the country.

By Salim Hirji Civil Litigation Court Decisions Share:
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