In Lawless v. Anderson, 2010 ONSC 2723 (CanLII), Mr. Justice David M. Brown dealt with a small but potentially significant practice point: the appropriate use to be made of an opposing party’s examination for discovery transcript on a motion for summary judgment. In this medical malpractice case, the defendant physician moved for summary judgment on the basis that the plaintiff had failed to sue within the applicable limitation period. Discoverability was a key issue.
The moving party filed the transcript of the plaintiff’s examination for discovery. When counsel for the plaintiff sought to rely on the same transcript, the defendant’s lawyer objected, arguing that on a motion for summary judgment, a party cannot rely upon the transcript of his or her own examination for discovery. Justice Brown referred to Rule 39.04(2), which provides that “[o]n the hearing of a motion, a party may not use in evidence the party’s own examination for discovery or the examination for discovery of any person examined on behalf or in place of, or in addition to, the party unless the other parties consent.”
However, His Honour noted that in this case, the moving party had filed, in its entirety, the transcript of the plaintiff’s examination and that [a]As a general rule when a party places into evidence answers given by an opposite party on her examination for discovery, such evidence is available to either party in the same manner as any other evidence”.
Counsel for the defendant submitted that although he had filed the whole transcript, he had only intended to refer to certain portions of it. However, Justice Brown said that “I must confess such an intention is not apparent from the face of Dr. Anderson’s motion record” and that as a result, the plaintiff could refer to the evidence that had been filed by the defendant. His Honour summarized the applicable law this way:
Absent a clear statement by the moving party that he only intended to rely on certain portions of Ms. Lawless’ discovery transcript, it reasonably was open to the responding party to operate on the assumption that the entire transcript was in evidence as part of the moving party’s record and to take that into consideration in determining the contents of the responding party’s record. With the entire transcript in evidence, the responding party could use that evidence as she could any other evidence in the record. All of which is to say, if a party on a motion for summary judgment wishes to rely on limited portions of the examination for discovery of an opposite party, it should only include in its record the passages it intends to “read-in”. Otherwise, in the absence of a statement of limited use, the entirety of a filed transcript becomes part of the record available for use in the same manner as any other evidence filed on the motion.
The first and fourth sentences of this passage suggest that a moving party can limit the use to be made of a discovery transcript that he or she is filing, by making a “clear statement” of the intention to rely on only certain portions of that transcript. However, the third sentence appears to take a more restrictive view and suggests that a moving party should file only those parts of the transcript on which he or she plans to rely.
Presumably, it would always be open to the responding party to argue that the parts of the transcript that the moving party has chosen to file are incomplete without other portions of the transcript and to force the moving party to file those portions as well.