Anna's Research Notes
Rules of Civil Procedure and Secondary Sources
Interpretation General Principle
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. R.R.O. 1990, Reg. 194, r. 1.04 (1).
Court May Dispense With Compliance
2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time. R.R.O. 1990, Reg. 194, r. 2.03.
Who May Examine and be Examined
31.03 (1) A party to an action may examine for discovery any other party adverse in interest, once, and may examine that party more than once only with leave of the court, but a party may examine more than one person as permitted by subrules (2) to (8). R.R.O. 1990, Reg. 194, r. 31.03 (1); O. Reg. 438/08, s. 28 (1).
In Place of Person under Disability
(5) Where an action is brought by or against a party under disability,
- the litigation guardian may be examined in place of the person under disability; or
- at the option of the examining party, the person under disability may be examined if he or she is competent to give evidence,
but where the litigation guardian is the Children's Lawyer or the Public Guardian and Trustee, the litigation guardian may be examined only with leave of the court. R.R.O. 1990, Reg. 194, r. 31.03 (5); O. Reg.
Notes on Secondary Sources confirm to Jim Hendry these were consulted.
Consulted the Canadian Encyclopedic Digest I.4.(c).(i) (Ontario) on Examination for Discovery Who May Examine and be Examined
Look at sections §120 127
- A party may examine any other party adverse in interest.
- Can also examine non-party if it is reasonable to think they have relevant information.
How to know if a party has and adverse interest? Note: this is not really an issue in the Hopper case.
From the entire record.
Sometimes adversity becomes clear as the case goes along.
§122 Deals with a third party action not relevant to Hopper case
§124 Deals with rules concerning simplified procedure not relevant to Hopper case
§127 Deals with class actions. Look at later for another case.
Nyilas et al. v Janos (1985), 50 CPC 91 (Ont. Master)
- Rule 31.03(9)
- 2 boys – plaintiffs in action, eye witnesses to sister killed in motor vehicle accident.
- Medical evidence that they would suffer psychological damage from oral examination.
- No waiver. Since the minors were competent, no discretion to exempt unless vexatious.
- Reasoning outdated. Courts no longer take this position – Ferrara and Kidd.
Ferrara v Roman Catholic Episcopal Corporation,  O.J. no 2164, Lax J.
- Rule 2.03
- Adult plaintiff in sex abuse case.
- The evidence was an affidavit by counsel setting out a phone conversation with the plaintiff where she talked of fear and anxiety.
- No waiver.
- Evidence was clearly hearsay and not sufficient.
- Cogent evidence required.
Kidd (K) v Lake (1998), 42 OR (3d) 312 (Gen. Div), Aitken J.
- Rule 2.03
- Child – plaintiff seriously injured in motor vehicle accident.
- Pre-existing condition aggravated by injury.
- No direct medical evidence of psychological harm from oral examination.
- Had evidence from family doctor on distractibility, low attention span, inability to talk about accident.
- Waiver of oral discovery. The court has an overriding responsibility to protect the interests of children.
- Need cogent medical evidence but also consider all circumstances.
- Found potential for psychological harm on balance of probabilities.
- Can look at all relevant circumstances, not just medical evidence. Standard of proof linked to protection of children.
Mohanadh v. Thillainathan, 2010 ONSC 2678
- Rule 2.03
- Adult injured in slip and fall. Pre-existing condition – schizophrenia.
- Doctors' reports and letters confirming oral discovery would increase anxiety and symptomology.
- Waiver of oral discovery. There was compelling and persuasive medical evidence. Defendant limited to written discovery.
- Need compelling evidence of harm from oral discovery.
Ontario (Attorney General) v. Singer, 2012 ONSC 5485
- Rule 2.03
- Two adults One had diabetes, other had depression.
- One doctor's handwritten note, no details, saying oral discovery would aggravate depression.
- Second doctor's report vague on details, not address potential effects of discovery.
- No waiver. The medical evidence was not compelling, persuasive or cogent.
- Shows evidence must specifically address the risk of harm from oral discovery, not generic "harm from litigation".
Anna's Outline of Hopper v Summervale
- Introduction: Research Question
- Task – Can Andrew Hopper be exempt from oral discovery based on potential psychological harm?
- Memo does not examine Andrew's competency therefore Rule 31.03(5)(b) not relevant.
- Brief Answer
- Andrew can be excused from oral discovery if there is compelling, persuasive, and cogent medical evidence that the discovery process will cause him psychological harm.
- Andrew's medical condition will satisfy both a balance of probabilities test (Kidd) and a higher "certainty of harm" test (Ferrara).
- Andrew was hospitalized from injuries that occurred while a camper at Summervale camp.
- The accident and injuries aggravated Andrew's pre-existing general anxiety disorder.
- Andrew's treating psychiatrist reports Andrew regressed as a result of the accident and cannot talk about it even in therapy.
- Case law has evolved from Nyilas – Master Rodger – If the 4 minor plts are competent, then oral exam can only be refused if, under Rule 31.03(9), the multiple examinations are vexatious.
- Case law turns to Rule 2.03, which allows courts to exercise discretion.
- Ferrara (1996) did not grant an exemption for an adult plaintiff in a sexual abuse case. Test was "certainty of harm" which was not met. The only evidence of potential psychological harm was an affidavit from the plaintiff's lawyer describing a telephone conversation with the plaintiff.
- Distinguish Hopper (adult vs minor; Hopper has pre-existing injury; Hopper has psychiatrist report.)
- Kidd (1998) Granted exemption to a 10 year old girl who had lost a limb and was traumatized. Court followed reasoning in Ferrara but used a balance of probabilities test rather than Ferrara's higher certainty of harm standard.
- Court concerned with protecting children
- Medical evidence weak– family doctor's letter describing problems in school, and decreased attention span and energy levels.
- Court looked at totality of evidence including age, nature of trauma, certainty of harm.
- Case facts closest to Hopper. Minor plaintiff.
- Post Kidd cases all use Kidd standard-balance of probabilities and persuasive and cogent evidence of harm.
- Mohanadh v Thillainathan 2010 exemption granted to adult plaintiff – prior diagnosis of schizophrenia. Dr's reports and letters that oral discovery will increase anxiety
- Ontario AG v Singer 2012– exemption not granted to adult plaintiffs with depression and diabetes. Drs notes were not persuasive.
- Medical evidence that Andrew's pre-existing condition will worsen together with other evidence of Andrew's decline in school and socially, will likely support an exemption.