Summary of Privileged Statement Must Be Given Even Though Witness Examined for Discovery

Tiller v. St. Andrew’s College dealt with a somewhat obscure practice point, but one that arises regularly in tort litigation: where a witness being examined for discovery has previously given a statement about the incident, is the examining party entitled to a summary of that statement?

In this case, the plaintiff was injured when a metal rod fell from the ceiling of a St. Andrew’s College, a high school, where she was attending a dance. She sued St. Andrew’s for damages. The Chief Engineer and Director of Property and Facilities of St. Andrew’s had given a statement about the accident (presumably, to the school’s insurer) soon after the incident. Litigation privilege was claimed on the statement in the defendant’s affidavit of documents and it was acknowledged by all, that privilege had appropriately been claimed.

At the examinations for discovery, the same individual who had provided the statement gave evidence on behalf of St. Andrew’s. Counsel for the plaintiff asked about the witness’ statement and requested a summary of the “facts relevant to the issues” that were disclosed in the statement. Counsel for the defendant refused to provide one. The plaintiff moved for an order, requiring that a summary of the Chief Engineer’s statement be given. The motion was heard by Mr. Justice Peter H. Howden and His Honour granted the motion.

Undoubtedly, if the person being examined for discovery on behalf St. Andrew’s had been anyone other than the person who gave the statement, there would have been no legitimate basis for refusing to provide a summary of the information contained in the statement. However, when the discovery witness is the same person who gave the statement, the argument that is typically made (and was here), is that the examining party has an opportunity, through the discovery process, to question the witness about the subject matter of the statement. Counsel for St. Andrew’s relied upon a decision of Mr. Justice Ducharme in Kennedy v. McKenzie. There, the moving party was seeking production of the statement itself. Justice Ducharme refused, saying, “[t]hus, the respondent will be able to obtain the appellant’s own account of the events which can be elicited at his examination for discovery. While this is not contemporaneous with the collision, neither is the statement the respondent wants produced.”

Justice Howden distinguished Kennedy on a couple of bases. One was that the person who had given the statement in that case was the plaintiff in the action, whereas in the present case, the person who had given the statement was not “a participant or party who was present at the originating incident”. His Honour ordered the defendant “to produce a summary of the facts relevant to the issues in this action as revealed in the statement of Klaus Griese”. His reasons for making this order were as follows:

The defendant in this case has put in issue safety of the premises, assumption of risk, causation, contributory negligence by the plaintiff, and damages. The plaintiff is entitled to know all of the facts known to the defendant relating to the condition of the premises at the material time, the role of the plaintiff, causation, and whether or not, and to what extent, she suffered damage. The plaintiffs are also entitled to know the names of any persons with relevant knowledge and their addresses. To the extent that there are relevant facts or witness particulars in the statement of the defendant’s Chief Engineer and Director of Property and Facilities at the relevant time relating to these issues, they are discoverable.

We don’t really understand why it should make any difference to the disposition of the motion, whether the maker of the statement was personally a party to the litigation, as opposed to being  a representative of a party. Justice Howden found that the summary of the statement “is not sought solely to impugn [the Engineer’s] credibility”. However, it is difficult to see any other reason for asking about the contents of the statement. For example, counsel for the plaintiff would be free to ask the Engineer questions about all of the issues mentioned in the quotation above (“the condition of the premises at the material time, the role of the plaintiff, causation, and whether or not, and to what extent, she suffered damage”) and none of the answers to those questions would be likely to require that reference be made to the earlier statement. The only reason that we can see, for requiring that a summary be given, would be in order to compare the Engineer’s account on discovery with what he said at the time of making the statement. Thus, it seems to us that the objective of the summary would, in fact, be solely for the purpose of impeaching the credibility of the defendant’s discovery witness.

This entry was posted in Discovery, Practice and Procedure, Privilege. Bookmark the permalink.