Witness Statements Must Be Produced?

In Portelance v. Williams, 2013 ONSC 1928 (CanLII), Justice Lynne Leitch dismissed a motion for leave to appeal a ruling of Justice Johanne Morissette, dealing with production of documents.

Justice Morissette had ordered the defendant “to provide a summary of the facts, including observations, with respect to injuries and liability contained in any of the investigation or other reports listed in Schedule B of the defendants’ affidavit of documents and to provide will say statements of witnesses they intend to rely on which are contained in Schedule B of the defendants’ affidavit of documents”.

The defendant moved for leave to appeal, arguing that “what has been ordered to be produced is beyond the scope of documentary discovery and confuses the issue of oral discovery”.

I don’t disagree with the first part of the order. Disclosure of “facts, including observations” relating to injuries and liability is not unlike requiring that defendants provide details of surveillance footage, which has been the law for a long time.

I have some reservations though, about the second part of Justice Leitch’s ruling: production of “will say statements”. Unfortunately, it is not quite clear from the reason just what sort of document is being referred to. Are these statements of witnesses that have been reduced to writing and signed by the witnesses? Or taped transcriptions of interviews? Or perhaps a third party’s summary of something told to him or her by the witness in a telephone conversation?

Justice Leitch said that “[t]he moving party [the defendant] cannot take issue with the fact that pursuant to Rule 31.06(2) and (3) on an examination for discovery, the plaintiffs would have been entitled to the information which Morissette J. has ordered to be delivered.” But I don’t think that’s correct. Nothing in either subrule contemplates a document being produced. In fact, subrule 31.06(2), which deals with “identity of persons having knowledge”, only covers that subject: “the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.”

It is true that the caselaw has added a gloss to that subrule, whereby an examining party is also entitled to a summary of the information that the examinee has from these “persons having knowledge”. So, it is certainly the case that information can be obtained in the course of oral examinations.

Still, I do not agree that the plaintiffs would have been entitled to production of privileged witness statements (as these presumably were) in the course of oral examinations for discovery. And it seems to me that there is no basis set out in Justice Leitch’s reasons according to which these documents could be said to have lost their privileged quality.

Unfortunately, it does not appear from the reasons as if the motion was argued on the basis of privilege. So, while Justice Leitch expressed the view that Justice Morissette’s decision “does not have the widespread and profound impact which the moving parties asserts [sic]”, in upholding an order for production of the privileged document as opposed to a summary of the facts that it contained, Justice Leitch does not seem to have  focused on the issue of privilege. (In fact, Rule 30, which deals with discovery of documents, was not even referred to.) If the two decisions are good law, they might very well have a greater impact than Justice Leitch believed.

So, in my respectful opinion, both rulings are incorrect in relation to the production of “will say statements”.

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