{"id":252,"date":"2007-01-02T13:54:06","date_gmt":"2007-01-02T18:54:06","guid":{"rendered":"http:\/\/www.cavanaghwilliams.com\/blawg\/?p=252"},"modified":"2007-01-02T13:54:06","modified_gmt":"2007-01-02T18:54:06","slug":"ca-refuses-discovery-before-action","status":"publish","type":"post","link":"https:\/\/www.cavanagh.ca\/blog\/?p=252","title":{"rendered":"C.A. Refuses Discovery Before Action"},"content":{"rendered":"

In Meuwissen v. Strathroy Middlesex General Hospital<\/a><\/em><\/strong>, the Court of Appeal ruled that a lower court judge had erred in ordering a hospital and a physician to produce certain documents in connection with a lawsuit that had not yet been commenced.<\/p>\n

The Court said that “there is no authority for the proposition cited by the motion judge…that ‘the intended plaintiffs in this case should be entitled at this time to disclosure of anything to which they would eventually be entitled’. In our view, this proposition cannot be supported in law.”<\/p>\n

The Court did say that “pre-pleading post-commencement of action” production of documents can be ordered, in exceptional circumstances,\u00a0to enable a party to plead, but that would still require that an action have already been commenced.<\/p>\n

The Court of Appeal went further\u00a0and observed that even pre-action discovery can be ordered in certain circumstances and referred to a 2001 decision of the Court of Appeal in Straka v. Humber River Regional Hospital<\/a><\/strong><\/em>.<\/p>\n

In Meuwissen<\/em>, the Court said that the plaintiffs should have applied for “a Straka <\/em>order”. In the Straka <\/em>case, the plaintiff had proceeded by way of application for an order, requiring a hospital to produce certain documents to him. Thus, the discovery being sought in that case was after litigation had been commenced.\u00a0The Court of Appeal held in Straka <\/em>that “an action for discovery lies in this jurisdiction.\u00a0The proceeding may be brought by way of application, if there are no material facts in dispute.” [para. 32] Presumably therefore, that is what is meant by “a Straka <\/em>order”.<\/p>\n

The Court in Straka <\/em>did suggest that pre-action discovery might be ordered, in “rare” cases, in order to enable the plaintiff to ascertain the name of the person against whom suit should be brought.<\/p>\n

In any event, on the facts of Meuwissen<\/em>, the Court of Appeal was satisfied that the plaintiffs already had “ample information to formulate and plead their case” and that there was no basis for a Straka <\/em>order.<\/p>\n","protected":false},"excerpt":{"rendered":"

In Meuwissen v. Strathroy Middlesex General Hospital, the Court of Appeal ruled that a lower court judge had erred in ordering a hospital and a physician to produce certain documents in connection with a lawsuit that had not yet been … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[32,18],"tags":[],"class_list":["post-252","post","type-post","status-publish","format-standard","hentry","category-discovery","category-practice-and-procedure"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/posts\/252","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=252"}],"version-history":[{"count":0,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/posts\/252\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=252"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=252"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=252"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}