Refusals and Objections: Strategy for the Winning Litigator
Introduction
As currently constituted, the structure of examinations either through discovery or cross-examinations on motions, can lead to unnecessary costs and delay. Defects in the system can be extensive and in certain cases can allow unscrupulous counsel to defeat justice with procedure. Such is the case where refusals are dished out so rampantly that the resultant transcript records more refusals than pronouns.
Inevitably, the examining lawyer is left with the option of proceeding without the requested evidence or wading through costly, laborious and time‐consuming refusals motions. Instead of allowing abusive behaviour at examinations to sink you into a battle of rules, an option I espouse, wherever possible, is to avoid it altogether. Refusals arouse suspicion. From a tactical perspective, proceeding to the trier of fact with a transcript that is littered with refusals can be just as effective, if not more so, than extracting the actual information requested. If something is improperly refused the court can draw a negative inference from the refusal to answer a question. Often, the negative inference that the Court draws from a refusal can be as effective as the evidence which opposing counsel seeks to suppress. Thus, instea of bringing a costly refusal motion, which will inevitably result in delaying the case, counsel should consider simply relying on the negative inference to be drawn from a witness’ refusal to answer a question or provide documentary evidence. This paper will discuss this concept in some detail, and (hopefully) inform counsel how to use refusals to one’s advantage.
For the counsel who is considering suppressing evidence by refusing to answer questions on the ground of irrelevance, this paper should give the opportunity to reflect on the wisdom of maintaining a refusal. The reasons:
- The negative inference to be drawn from a refused question can be harmful to one’s case;
- The refused information cannot be introduced at trial without leave of the trial judge.1
- If a refusal motion is brought, it is more than likely that the refused evidence will be ordered to be produced. (See the discussion below on the “Do No Harm” theory.)
Despite the tactical advantage that can be gained by simply accepting refusals, I further argue that refusals based on relevance are not a useful aspect of our current litigation infrastructure. If the ability to refuse to answer a question at discovery, except in the case of privilege or egregious irrelevance, is eliminated, the litigation process will proceed more smoothly and efficiently.
The Scope of Discovery
While this paper addresses refusals at both discovery and cross‐examination on a pending motion, the robust set of rules surrounding the discovery process necessitates their particular attention. There are two types of cross examination on pending motions:
a. cross‐examinations on affidavits (Rule 39.02); and
b. cross‐examinations of witnesses on a pending motion (Rule 39.03).
Generally, the scope of cross examination under Rule 39 is wide. If a question is in any way relevant to the matters in issue, to the background of a matter, or to the credibility of a witness, it ought to be answered. The failure to permit a question to be answered (or a refusal to produce a document) can lead to negative consequences.
The scope of the examination for discovery is set out in Rule 31.06 of the Rules of Civil Procedure which states that a person being examined shall answer any proper question relating to any matter in issue in the action to the best of his/her knowledge, information and belief. Further, no question may be objected to on the ground that:
a. the information sought is evidence;
b. the question constitutes cross‐examination, unless the question is directed solely to the credibility of the witness; or
c. the question constitutes cross‐examination on the affidavit of documents of the party being examined.
The difference between a Rule 39 examination and a discovery (Rule 31) is that on discovery questions that go to credibility only may be refused.
The duty of ensuring full disclosure also flows through to the lawyer. The Rules of Professional Conduct impose specific obligations on lawyers concerning discovery:
4.01 (4) Where the rules of a tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate
a. shall explain to his or her client
i. the necessity of making full disclosure of all documents relating to any matter in issue, and;
ii. the duty to answer to the best of his or her knowledge, information, and belief, any proper question relating to any issue in the action or made discoverable by the rules of court or the rules of the tribunal,
b. shall assist the client in fulfilling his or her obligations to make full disclosure…
Inevitably disputes arise as to the relevance of certain questions and consequently, the matter goes before the courts for a determination of whether a question was properly refused. When considering whether a refused question should be answered, the court must determine whether the question is relevant, which is a question of law, and whether the question is proper, which is a matter of discretion.2
The tendency over the past several years has been to broaden the scope of discovery and the court will steer away from conducting a minute examination as to the relevance of questions and requests.3 The breadth of examinations for discovery is far wider than trial court admissibility with respect to evidence. In order for a court to support the refusal of a question it must be satisfied that that question has no “semblance of relevancy”. Master Peppiatt makes this point clear:
The present philosophy in the conduct of civil litigation in Ontario, and which applies to examinations for discovery, requires very wide disclosure. Questions on examination for discovery should be answered unless the Court is satisfied that they have no semblance of relevancy; see Kay v. Posluns, 71 O.R. (2d) 238. Information may be elicited on discovery even though the precise question and answer might not be admissible at trial. There is a discretion in the trial judge to control what may be read into evidence from the examination of a person examined for discovery on behalf of a party; see Rule 31.11 (1) (b). Questions on discovery are proper if they may lead to a line of enquiry which would uncover admissible evidence.4
The rules relating to both discovery and production in the Rules of Civil Procedure were clearly intended to provide for full and complete disclosure of all information and documentation bearing on those issues.5 The broad nature of discovery under Rule 31.06 is confirmed by Justice Festeryga who comments:
The law allows fairly wide latitude with respect to questions on examinations for discovery. The test is “some semblance of relevancy”. The questions have to be reasonably relevant to the pleadings, keeping in mind the nature of the claim…6
To aid in the interpretation of the “semblance of relevancy” test, the criterion for discoverability can be said to be whether the information sought may (not must) assist the examining party’s case.7 Information may be pursued in a discovery if it may lead to a line of inquiry that would uncover admissible evidence.8
Despite these basic principles and the fact that the avenue of relevance has been expanding, courts have expressed reticence towards the widening scope of discovery. The Ontario Court of Appeal stated:
The discovery process must also be kept within reasonable bounds, lengthy, some might say interminable, discoveries are far from rare in the present litigation environment… Unless production from and discovery of non‐parties is subject to firm controls and recognized as the exception rather than the rule, the discovery process, like Topsy, will just grow and grow. The effective and efficient resolution of civil lawsuits is not served if the discovery process takes on dimensions more akin to a public inquiry than a specific lawsuit.9
It is still not uncommon for counsel to misuse the process and ask too many questions of tangential or no relevance. In such cases, refusals may be proper but there is a fine line between concealing evidence and truly seeking to keep needless irrelevance from the record. As one British Columbia judge stated:
Counsel’s refusal to provide such documents in these circumstances is perhaps a questionable tactic, but not an abuse of process. A refusal cannot be equated with a concealment.10
In the well-known case of Chitel v Rothbart11, the Court of Appeal, dealt with a cross examination of a witness (Mrs. Chitel) who had failed to make disclosure of material facts on an ex parte Mareva injunction. On the subsequent motion to set aside the ex parte Order, her counsel repeatedly interfered in the examination, and refused to answer questions. The Court noted the following in its decision:
On the cross‐examination, after counsel for the plaintiff refused to allow her to answer a number of questions, and sought to limit the cross‐examination to the two stocks mentioned in the plaintiff’s affidavit, the following took place between counsel:
MR. HARRIS: You have made in paragraph two of Mrs. Chitel’s Affidavit, allegations that would indicate and giving flavour, that Dr. Rothbart was the guiding influence of Mrs. Chitel, and I am entitled to show that the exact opposite was in fact the case, and as Mrs. Chitel has already stated, Dr. Rothbart was not experienced in the stock market. My purpose is to show that Mrs. Chitel not only was very experienced in the market, but that she knew all these promoters, she worked with them, she referred to them as her partners, as she has already testified, that she guided Dr. Rothbart throughout.
MR. COHEN: The only thing that Dr. Rothbart has done in this case, is worked himself into the complete trust of this woman, so that she trusted him.
MR. HARRIS: On the contrary, I am entitled to show that the exact opposite is the case, and that Dr. Rothbart was in the trust, and trusted Mrs. Chitel.
MR. COHEN: Then he had better file an Affidavit, because you’re not going to be—
MR. HARRIS: I am entitled to Cross‐Examine on this Affidavit, and if you continue to advise the Witness not to answer the questions, it will be obvious that your purpose is not to allow the court to see the full truth of this matter for the purposes of this Injunction. If you are intent to drop your Application for an Injunction, and go forward with the law suit, say so on the record.
Counsel for the defendant made clear his purpose in the cross‐examination which was a proper and legitimate purpose, indeed a necessary purpose of those were his instructions and if he was to discharge his responsibilities properly. By that stage the plaintiff’s counsel had already advised her not to answer 18 questions in some 12 pages of transcript. After the discussion noted he continued, throughout the cross‐examination, to advise his client not to answer relevant questions. In many instances, he answered questions himself, making statements of fact on the record which were not sworn to by the plaintiff, or immediately re‐examined her in the course of her cross‐examination in order to elicit the answer he obviously felt would recapture some ground lost in the cross‐examination.
Counsel seemed to have confused, in part at least, the right to limit “fishing expeditions” on examination for discovery with a severe limitation on the extent of proper cross‐examination. Counsel at trial would not, on any and every pretext, seek to frustrate proper cross‐examination. If he did, he would be quickly corrected by the trial judge. Because a judge is not present does not mean that a counsel, who is an officer of the court, should take a different position. He should not answer some obviously significant question himself before the witness answers, unless it is done by agreement with counsel for the other side, nor lead his witness immediately after the witness has given a damaging answer to explain the answer. Nor should he interrupt and prevent, time after time, questions from being answered although a legitimate ground has been given for their being asked. It seems to me that this is so in all cases, but particularly where ex parte injunctions have been granted. In such cases the matter is one of urgency which should be determined as quickly as possible by the court without the party restrained being forced to bring interlocutory motions and appeals in order to get the answers of the deponent to relevant questions. I have digressed to a certain extent but I think it important that a practice not develop which would debase the value of the right to cross‐examine and effectively frustrate its legitimate purpose.
The “Do No Harm Theory”
Where a question has been refused on examination, or documents have been refused to be produced, counsel facing a refusal motion should consider the position of the Master or Judge who will hear the refusal motion. While the law has laid out the “semblance of relevancy” test, we suggest that there is another test that prevails. We call it the “Do No Harm Theory”. Why? The answer is as follows.
Confronted with counsel arguing whether a question has a semblance of relevancy or not, the trier of the motion often will consider what harm would result from ordering the suppressed evidence or document to be produced. An Order refusing to require the production of the evidence can mean that it will not be available to the trial judge. On the other hand, if the evidence is ordered produced its relevance or weight can be argued at trial. Absent any other considerations, there is no harm that results from an Order requiring the question to be answered or the document produced.
Our (unscientific) observation is that judges and masters will more often than not consider the harm that results from an Order, and if there is none, will lean in favour of an Order requiring questions to be answered or documents produced. Put another way, if a refusal motion is brought and there is no issue of privilege, it is more than likely that a responding party will lose.
Sanctions under the Rules
Rule 31.07 of the Rules of Civil Procedure addresses an individual’s failure to answer questions in discovery. If a party claims privilege or otherwise refuses to answer a question and does not waive the privilege or answer the question 60 days prior to the commencement of trial, the evidence that was refused may not be introduced at trial except with the leave of the court.
Rule 34.14 of the Rules of Civil Procedure allows a party to an examination (discovery or cross-examination) to adjourn to seek the direction of the court for a variety of reasons including where the examination is being conducted in bad faith or the process is being abused. The rule specifically provides for the situation where answers to questions are evasive, unresponsive, unduly lengthy, or there has been a negligent or improper refusal to produce a relevant document.
In Rothbart et al. v. Fainman12, a 1998 case involving the same Rothbart as in the above mentioned Chitel v Rothbart (supra), an issue arose as to the interference of counsel in the examination of a witness. Counsel (the writer), frustrated with repeated refusals and the interference of opposing counsel, adjourned a cross examination and brought a motion for directions under Rule 34.14. The Court found that there was “unreasonable interference” by counsel on the examination. Justice Ellen MacDonald stated as follows:
I agree with the analysis of rule 34.14 made by Master Peppiatt in Kingsberg Developments Ltd. v. MacLean (1985), 3 C.P.C.(2d) 241, at pp. 243‐244, where he said:
‘Rule 34.14 is designed to permit the court to make such orders as may be just and necessary when the conduct of one counsel or another is such that a proper examination cannot be held. I emphasize the use of the word “improper” in rule 34.14(1)(a). In my view this connotes something more than a legitimate disagreement between counsel as to the propriety of particular questions. It requires, before the rule is engaged, a type of misconduct such as to render the examination futile without the intervention of the court. This meaning is clear from the rest of the paragraphs which describe conduct that can fairly be said to be an abuse of the process of the court. Subrule (2) which again uses the words “improper” and “improperly” emphasizes this. It invites the court to make a punitive order as to costs against the “person” whose conduct has been improper. This would, in most instances, be directed against counsel who are normally responsible for what questions are asked and which are refused. (Emphasis in original)’
[26] Again, I emphasize that having read the transcript of the cross‐examination, I have concluded that the conduct of Mr. Abramson and Rothbart rendered the examination futile and, as a result, Mr. Davis was correct in adjourning the examination.
[27] I note in this context the reasons of Master Cork in Hall v. Youngson (1989), 39 C.P.C.(2d) 149 (Master). At p. 155, Master Cork observes as follows:
… the definition of ‘behaviour’ to bring a fact situation under rule 34.14, must ‘require a type of misconduct such as to render the examination futile, and if the offending counsel continued in it, it would indeed have rendered the examination, if not futile, certainly less effective than the examining party was entitled to expect’.
[28] Regrettably, I have concluded (as did Master Cork in the Hall v. Youngson, supra), that the cross‐examination of Rothbart was wrongfully interfered with by excessive and improper interruptions. The improper conduct has met the criteria under rule 34.14. This improper conduct entitles Fainman to a fresh cross‐examination of Rothbart. I hope that Rothbart will be more forthcoming and that Mr. Abramson will be constrained in his role as counsel to Rothbart. Until such time as the cross‐examination of Rothbart is completed, the cross‐examination of Fainman is to be held in abeyance. In any event, the cross‐examination of Rothbart and the cross-examination of Fainman are to be conducted within 30 days of the release of these reasons.
Rule 34.15 provides remedy for the situation where a witness refuses to answer a proper question or to produce a relevant document. Where an objection to a question is held to be improper, the court may order the person to reattend at examination at his or her own expense to properly answer the question. In more extreme cases a party’s evidence may be struck, or their claim dismissed.
In one such extreme case, a defendant was ordered to answer certain discovery questions to which he had previously refused, failing this, judgment would follow. The Defendant reattended for examination and again refused certain questions. The Defendant’s counsel argued that questioning on an examination for discovery is limited by rule 31.06(1) to any proper questions “relating to any matter in issue in the action”. It was his further position that the refused questions related to issues not identified in the pleadings and beyond the scope of the action. The court held that the “semblance of relevancy” test provides a wide latitude at discovery and granted judgment for the plaintiff.13
While the above example is at the far end of the spectrum, it illustrates the position the courts are willing to take with regard to refusals. Such a harsh result aside, the court has demonstrated countless incidences where refusals are met with a burdensome reattendance and/or costs sanctions. Accordingly, unless answering a question creates a true disadvantage or unnecessary cost for the client, a simple and reasonable approach is to just answer the question and leave relevance to the trier of fact. This tactic finds support in Rule 34.12(2) which allows a party to answer a question without the concession of admissibility or relevance:
A question that is objected to may be answered with the objector’s consent, and where the question is answered, a ruling shall be obtained from the court before the evidence is used at a hearing.
Practical Considerations – A Cost Saving Winning Strategy
Motions for refusals are expensive. They delay cases for months and even if they are successful, partial indemnity costs are generally awarded. Therefore, the cost of getting the refused information is high. This section discusses an alternate approach to refusal motions.
Where a question is refused, the examining counsel should make clear on the record that a question is being refused and further inform the refusing party that s/he will ask the court to draw a negative inference from the refusal. This tactic avoids the cost and headache of visiting a master and puts the ball in the other party’s court to evaluate whether a refusal is truly worthwhile.
Even if a party suspects a question is irrelevant, the issue is better decided by the trial judge. “The ultimate reasonableness of the relevant issues is for the trial judge.”14 The Court is in a much better position than counsel to judge relevance. If counsel errs in this regard, his/her client will inevitably be disadvantaged. As Justice Urie of the Federal Court of Appeal reasons:
When produced the documents in the file may assist the appellant in its defence. On the other hand, they may not and may, as the respondent says, be totally irrelevant. In either event, the matter in issue may be more readily resolved at trial although their ultimate relevance and the weight to be attached to them will be matters for the Trial Judge.15
The reasoning of Justice Urie should be instructive to all counsel and the potential repercussions of refusing questions should be properly balanced with the effect of providing an answer, even if it seems irrelevant. The more an opponent resists the production of certain documents or a line of questioning, the more suspicious that issue becomes. The more counsel refuses to allow questions to be asked, the stronger the inference that the requested information is not helpful to their case.
In such a situation, suggesting that you will ask for a negative inference and placing the transcript in front of the eventual trier of fact can be a very effective technique. When a transcript is riddled with refusals it can be hard for a judge reading it to not see the refusing parties conduct as obstructionist.
In one recent case in which I was involved on behalf of the defendant, two disputing business parties had developed several properties together. It was the contention of the plaintiff that the claim only dealt with one property. It was my position that the other properties were nonetheless relevant to the action. At the plaintiff’s cross‐examination on an affidavit in support of an upcoming motion I asked for various documents relating to all of the properties:
BY MR. DAVIS
Q. I’m going to come back to Laura in a minute, but you’re aware that I asked your counsel for you to bring a number of documents with you today. You’re not aware?
A. He mentioned to me that you had asked, yes.
Q. Did you bring them?
A. No.
MR. ORMSTON: No.
BY MR. DAVIS:
Q. You brought nothing?
MR. ORMSTON: No. It’s for the reasons that I set out in my E‐mails, in our E‐mail exchanges, Mr. Davis, and I’m prepared to ‐‐ certainly from our E‐mail exchanges you didn’t convince me that the stuff you were looking for would be relevant.
MR. DAVIS: That’s fine.
…
BY MR. DAVIS:
Q. I’m going to show you another E‐mail dated September 5. You’ll see in item 3 I ask for your counsel to provide me with copies of all relevant documents, cheques, invoices, agreements, etcetera, relating to each of the properties mentioned in the affidavit material. Have you seen this E‐mail before?
MR. ORMSTON: He wouldn’t have, no.
THE DEPONENT: No.
BY MR. DAVIS:
Q. I’m showing to you another E‐mail dated September 6 responding to an E‐mail from Mr. Ormston September 5 where I say: ” Absent full production of all relevant documents I will ask the court to draw a negative inference from your client’s failure to produce relevant documents.
” Have you seen this exchange of E‐mails?
MR. ORMSTON: He would not have seen that either.
…
BY MR. DAVIS:
Q. I want you to produce the cheque for your contribution to the down payment?
MR. ORMSTON: And what is the relevance of that?
MR. DAVIS: Go ahead and object. I told you I would draw a negative inference from your refusal to bring those documents…
At the return of the motion I brought these transcript references to the judge’s attention in addition to a few other refusals to answer certain questions and provide certain documents. The judge found entirely in my client’s favour and made several comments concerning the other party’s failure to provide relevant documents:
The Defendant argues the Plaintiff failed to disclose critical material facts, namely, that the Defendant borrowed $2,000,000 to fund the purchase price and renovation of Glen Road. He failed to disclose documentation to substantiate his assertion he funded the bulk of the Glen Road venture, under circumstances where he claims he kept the books for that project. The Plaintiff has failed to produce any cancelled cheques, invoices, bank statements or other documentation that would have assisted the Court when considering the request for injunctive relief.
…
I do not accept the Plaintiff’s position that documentary support for the Glen Road transaction is irrelevant or inconsequential. It is clear from his affidavit and cross‐examination the Plaintiff refused to provide pertinent information that I find was legitimately requested by the Defendant. The Defendant is entitled to inquire about and seek documentary support for the Plaintiff’s claim he provided the bulk of the funds for the Glen Road venture. If the Plaintiff kept the books as he claimed, the documentation should be available to him to present to the Court. I do not find it is an unreasonable standard of disclosure to require the Plaintiff to have disclosed that documentation.16
In a discovery relating to a separate action I was involved with, I was faced with an active counsel who instructed his client to refuse answers to several questions and requests for relevant documents. I felt the refusals were unwarranted and that the documents in question were necessary. Instead of arguing I simply informed counsel that I would raise the refusal with the trial judge:
MR. DAVIS: Are you finished?
MR. SILVER: Mm hmm.
MR. DAVIS: I’m not going to argue with you. All I’m going to do is bring this to the attention of the court at trial, and ask the court to draw the appropriate inferences.
MR. SILVER: As you are entitled to do.
At trial I did just that and Justice Greer found the following:
In discovery, Klupt was asked to ask his accountant to produce his working papers, used in the preparation of this Financial Statement. Klupt refused 6 times to do this, saying it would cost him money to get these. Thus, there was no explanation by NTM’s accountants as to why their figures differed from those in the Notational Statement.17
It becomes apparent from analyzing the above cases that the value of a finding that the requested information was irrelevant must be balanced with the potential harm of a finding that the requested information was relevant. When information was refused, I did not argue but rather made clear that such a refusal would be noted to the trier of fact and a negative inference would be requested. This allows the cross‐examination or discovery to run smoothly and provides the opposing party with notice that he/she will have the onus of proving irrelevance.
In this first case above, Chang v Colligan (supra), the refusals turned out to be a significant part of the decision. The harm to the plaintiff was the loss of an important injunction and a substantial costs award. Had plaintiff’s counsel conceded the relevance issue or answered the questions pursuant to Rule 34.12(2) he may very well have won the motion and the only harm would have been a marginally longer cross‐examination and some photocopying.
A similar situation can be seen in the second case above 1565831 Ontario Ltd. v. Klupt (Supra). In that case, the Plaintiff had claimed that financial documents supporting the proposed sale of a business were fraudulent. The Defendant refused to produce the working papers from which the financial statements were allegedly prepared. As Justice Greer noted, the working papers were requested 6 times on discovery. The refusal to produce them led to a negative inference.
This latter case is a good illustration of the notion that sometimes the negative inference resulting from a refusal can be more helpful than the evidence that is suppressed. What a misfortune if the working papers actually would have confirmed the Defendant’s position – even if counsel thought they were irrelevant (which is turns out they were not); producing them may have changed this defendant’s fortunes.
In Marcon Custom Metals Inc. v. Arlat Metals Inc18 Master Dash heard a motion requesting security for costs. An officer of the plaintiff filed an affidavit claiming that the corporation had various exigible assets in Ontario and appended certain financial documents. On cross-examination, the affiant refused to answer certain question or to produce documents underlying recent financial statements and other financing documents. The decision doesn’t offer the basis of these refusals but strategically, we are left to wonder. If the advice of counsel was that the documents were irrelevant, in the case at hand at least, counsel has done his client a disservice. Having provided the documents would only have served to strengthen the client’s position whereas the refusal leads to one of three possibilities:
a. the plaintiff wins regardless;
b. the defendant brings a costly and perhaps unnecessary refusals motion; or
c. the court agrees that the document were relevant and sides with the defendant.
Master Dash informs:
While there may be limits as to the extent of the cross‐examination on details of every individual transaction, every item of property or each receivable, in my view the questions posed on this cross‐examination did not cross the line. The questions refused were directed to documentary proof of key items put forward as sufficient assets.
Under the circumstances, the prudent measure would have been to provide the requested documents and information and not risk rousing the court’s suspicions as to whether or not the documents reflect negatively on the Plaintiff’s position. In the case at hand, a negative inference was drawn.
In my view given that Arlat relies on its accounts receivable, inventory and property, plant and equipment as exigible assets sufficient to meet a costs award, and given the absence of an audit, the requests for further information and documentation were reasonable. Likewise questions whether the assets on the balance sheet are covered by security agreements given to the Bank of Nova Scotia and to I Trade are obviously relevant and critical to a determination of the sufficiency and exigibility of those assets. The refusal to answer any questions about I Trade Finance leaves the court to speculate whether this indebtedness is minimal or substantial and whether it is secured against all of Arlat’s assets. The court draws a negative inference from this refusal.
Tragically for the case of the Plaintiff, Master Dash suggests that it may very well have been successful but authored its own defeat with refusals:
28 It may be that the company in fact has sufficient assets, but it has refused to provide adequate current information or documentation, although within their means to do so. I am not satisfied based on the evidence before me that there are sufficient exigible assets of Arlat to pay an award of costs, and an order for security for costs will issue.
2003 Task Force & The Osborne Report
In 2003, Justice Colin Campbell chaired the Task Force on the Discovery Process in Ontario which examined the discovery process and recommend certain changes to increase efficiency and cut down on costs. One of the areas of concern to the Task Force was the refusal of questions based on relevance.
The task force stated:
There are a variety of reasons for refusals based on relevance. For example, it may be that the witness is not properly prepared, or that counsel for the witness is not familiar with the issues as seen from the other side. Alternatively, counsel may wish to delay or avoid a damaging response and to have further time for reflection.19
The report noted that in 2000, in an effort to address the proliferation of refusals motions, the Advocates’ Society made a recommendation that the right to refuse answers at discovery (but for the case of privilege) be abolished. Under the proposal, a party wishing to avoid a question would be forced to answer and the admissibility of the question would be later determined by the trier of fact. The requested amendment was based on Rule 30(c)(2) of the U.S. Federal Rules of Civil Procedure:
An objection at the time of the examination — whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition — must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a non-argumentative and non-suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
The Advocates’ Society eventually withdrew its proposal in 2002 after the Civil Rules Committee disagreed and suggested such changes would lead to the abuse of the discovery process. The Task Force concluded that the Rule 34.12(2), is “vastly underutilized and should be used to greater
effect.” That Rule provides as follows:
A question that is objected to may be answered with the objector’s consent, and where the question is answered, a ruling shall be obtained from the court before the evidence is used at a hearing.
In the current regime there is no compelling reason to use Rule 34.12(2). Instead of utilizing Rule 34.12(2), a party can just object to a question outright and shift the burden back to the asking party to deal with it. An obstructive counsel (or witness) is not going to utilize this rule. He or she will simply stonewall, maintain the refusal, and force the opposing party to bring a motion to compel the sought after evidence.
In November of 2007, Former Associate Chief Justice Coulter Osborne released his Summary of Findings & Recommendations resulting from the Civil Justice Reform Project. The Osborne Report agreed with the Task Force in regard to the scope of discovery and suggested that the “semblance of relevance” test ought to be replaced with a stricter level of “relevance”. Such a move, the Osborne Report continues, would have little impact on lawyers who already act reasonably during the discovery process but would curb discovery abuse and disallow costly and time consuming engagement in areas of inquiry that could not reasonably be considered necessary.
The Osborne Report also looks into the issue of refusals based on relevance and considers a change substantially the same as the Advocates’ Society proposal. The report concludes that such a change is unnecessary as it had the potential for adding costs and would serve to broaden the scope of discovery which would be a result inconsistent with the report’s other recommendations. Similar to the Task Force’s position, the Osborne Report offers the following recommendation:
As a best practice, encourage parties to voluntarily answer questions at an examination for discovery that are objected to on the basis of relevance, as permitted under rule 34.12(2). In addition, encourage the court to consider the availability of the process in rule 34.12(2) when making the appropriate cost awards on refusals motions.
A Suggested Path
As of the date of this paper, the Civil Rules Committee is considering the recommendations in the Osborne Report. I would again advocate that the Advocates’ Society’s proposal, or the structure currently in place in the U.S. federal courts, be implemented in Ontario. This structure could be effectively used in conjunction with a narrowed scope of relevance. An objection based on “egregious irrelevance” could also be introduced.
Under this system, counsel could pose questions of dubious relevance and with the option of noting an objection, the party would be required to answer. If the question was indeed irrelevant, that determination could be later made by the trier of fact. Concerns that this would lead to expanded abuse of the process should be alleviated by the fact that offending counsel would be subject to costs sanctions. The scope of relevance would be narrowed, and if it is later determined that counsel made inquiries outside of this scope, those answers would be inadmissible and any inconvenience occasioned by the line of irrelevant questioning would be compensable by a costs award. Further, as a safety valve, counsel would be permitted to object on the basis of egregious irrelevance.
Practically speaking, once the information claimed to be relevant is known to the opposing party, its suppression as evidence becomes unnecessary. Objections tend to melt away once the information is known to the other side. In conclusion, it is rarely to the advantage of a party to object to a question on the basis of irrelevance and can lead to costs, re-attendances, negative inferences and more. The benefit derived from any refusal is simply far outweighed by the possible detriment. Any wild fishing expeditions by counsel can be corrected with costs awards by the trier of fact and refusal motions could then all together be eliminated.