Assurance et réassurance
Considering that the general purpose of examination for discoveries to gather information to establish the strengths and weaknesses of a party’s position, and that refusals motions come at a steep cost, counsel should strongly consider using Rule 34.12(2) when liability is not at issue.
Examinations for Discovery (“Discoveries”) allow parties in a dispute resolution process to better understand the case to be met and assess the weaknesses and strengths of their positions. Discoveries are akin to examinations of witnesses during trial as it relates to fact finding; however, Discoveries are not subject the same rigorous evidentiary rules required at a trial. Instead, Discoveries can serve to promote future settlement discussions through a less formal process than at trial. When opposing parties refuse full disclosure, either by refusing or taking under advisement a number of questions, this objective becomes difficult.
If the goal is an early resolution, then settlement is a more approachable option when all parties have full knowledge of the strengths and weaknesses of their case. Answers obtained during Discoveries can help parties to better evaluate the risk and exposure of their position. In some circumstances, a party may come to realize that trial is no longer a viable option or cost-effective manner to proceed. Instead, settlement is a more palatable solution.
Pursuant to Rule 31.07(2) where a question is refused, the refusing party cannot introduce that evidence at trial without leave of court:
31.07(2) Effect of Failure to Answer
If a party, or a person examined for discovery on behalf of or in place of a party, fails to answer a question as described in subrule (1), the party may not introduce at the trial the information that was not provided, except with leave of the trial judge.
Therefore, where the inquiring party wants to obtain the answers to the refused questions, the solution is usually to bring a motion where the court is asked to weigh in on the propriety of the question. That recourse is often costly and time consuming.
In light of the Discoveries general purpose as a fact gathering mechanism to establish the strengths and weaknesses of a party’s claim or defences, and also considering the steep costs associated with a refusals motion, Rule 34.12(2) should be considered as a viable option for counsel to consider. Rule 34.12 provides:
34.12 Objections and Rulings
34.12 (1) Where a question is objected to, the objector shall state briefly the reason for the objection, and the question and the brief statement shall be recorded.
34.12 (2) A question that is objected to may be answered with the objector's consent, and where the question is answered, a ruling shall be obtained from the court before the evidence is used at a hearing.
34.12 (3) A ruling on the propriety of a question that is objected to and not answered may be obtained on motion to the court.
Rule 34.12 provides two options concerning refusals (or “Failure to Answer” under Rule 31.07(2)).
In essence, Rule 34.12(2) (Option 1) allows a party to answer a refused question. However, that answer will not be subject to the presumption (under s. 48 of the Ontario Evidence Act) that the evidence given by the witness is admissible at trial. This Rule can be particularly helpful if the goal of the discovery is to ultimately promote settlement.
Counsel that applies Rule 34.12(2) during Discoveries can provide a clearer understanding of the case the parties need to meet without having the evidence presumptively admissible at trial. All parties remain protected; the answers to refused questions under Rule 34.12(2) cannot be admitted at trial without the court’s ruling on the admissibility of the answer.
Rule 34.12(2) is not a commonly engaged Rule. It has also been the source of divergence in Ontario jurisprudence. The subtle, albeit important, difference between Rule 34.12(2) and Rule34.12(3) is at the core of this incongruity.
Under Rule 34.12(2), admissibility of a refused but answered question should be decided by the trial judge at the hearing, but it does not specify whether issues related to the propriety of the question can be put to the trial or motions judge in the first place.
On the other hand, under Rule 34.12(3) (Option 2), the propriety of a refused and unanswered question can be determined on motion to the court prior to the trial, then if the motions judge finds the question appropriate, counsel can obtain the answer.
The rule is straightforward if counsel only employs one of the two rules with regards to refusals, but complications can arise when counsel refuses questions pursuant to both Rule 34.12(2) and Rule 34.12(3).
The remarks of the late Justice Brown in 1196303 Ontario Inc. v Glen Grove Suites Inc., are instructive in this regard:
Justice Brown’s comment supports the observations of Justice Hugessen, who several years earlier, commented on the importance of answering questions during examinations for discovery in Montana Band v. Canada,
The reasoning in Montana Band (supra) appears to be the preferred approach of the Honourable Justice Myers of the Ontario Superior Court at a case conference in which he was asked to decide certain issues prior to trial. During the examinations for discovery which preceded the case conference, the plaintiffs objected to approximately 150 questions, but answered the questions under Rule 34.12(2). The defendants sought leave to bring a refusals motion regarding the 150 refused questions. Counsel for the defendant argued that the motion would save the trial judge from hearing the motions and would provide counsel with the certainty of knowing in advance what evidence may be used at trial.
Justice Myers found that “the most obvious benefit of using Rule 34.12 is that it avoids the slow and duplicative process of objection-ruling-re-attendance.” Importantly, the defendants were not successful because granting leave to the defendants “would undermine the purpose of my invoking Rule 34.12 in the first place.” Justice Myers reasoned that counsel should not hesitate to put an evidence ruling before a judge, because “judges are happy to do their jobs.” That said, where counsel asks the court to rule on the admissibility of answers to refused questions under Rule 34.12, the focus should centre on the “issues that matter, not every possible piece of marginally relevant evidence.” Certainly, efficiency is at the core of the objectives that underlie Rule 34.12, but since Rule 34.12(2) and Rule 34.12(3) are rather incongruent, it can prove difficult to decide which option under Rule 34.12, either Rule 34.12(2) or Rule 34.12(3), will be more efficient for the purposes of the case.
Of note, in Industrial Alliance Securities Inc. v Kunicyn et al. (Industrial Alliance) the court addressed a motion for answers under Rule 34.12. Interestingly, some refused questions were answered during the examinations for discovery and some remained unanswered. Master Jolley noted that Rule 34.12 “does not specify whether the ruling is to be made by the master or judge presiding over the hearing in which the evidence is sought to be introduced or whether the ruling can be obtained on a preliminary motion…”
Ontario courts are frequently required to make findings on the relevance of questions asked during examinations for discovery. In Industrial Alliance, for example, the court held that “there is nothing inappropriate about proceeding to obtain a ruling on the question from a judicial officer who will not hear the ultimate hearing.” Counsel for the moving party presented an interesting argument –the answered but refused questions had prejudiced the defendant’s position. Had the questions not been answered, counsel would have been entitled to bring a motion to obtain a ruling on relevance.
While it did not ignore Justice Myers’ earlier comments in ERSP International (supra), the court circumvented the issue raised by Justice Myers, finding that “the moving party is entitled to the ruling sought on the relevance of the questions answered under protest.” Therefore, the motions court only made a ruling on the relevance of the questions themselves and did not address the admissibility of the answers to these questions, noting that doing so “does not limit the discretion of a master or judge hearing any substantive motion or judge hearing the trial to determine the relevance of those answers to the issues before him or her” [emphasis added]. The court’s comment appears to leave room for a motions judge to address the admissibility of answers obtained under protest.
More recently, in York Region Condominium Corporation No. 890 v. Market Village Markham Inc., the court took a different position. Faced with a motion by the defendant for orders that answers given by the plaintiff pursuant to Rule 34.12(2) be admissible at trial, the court considered the decisions in ESRP and Industrial Alliance but decided to go a different direction.
The court reasoned that it would be inconsistent to allow the defendant to move for rulings of relevance on refusals for which no Rule 34.12(2) answer has been given but deny it the same ruling where an answer under Rule 34.12(2) has been given. Accordingly, “whether or not determinations on the relevance of refused questions and use of the Rule 34.12(2) answers is appropriately deferred to the trial judge depends on the nature of the questions asked and relevance in the overall litigation.”
Striking the right balance when it comes to refusals during discoveries can be a difficult task and Rule 34.12 offers several strategies in that regard. But where liability is not a major issue and the goal of both parties is to come to a mutually agreeable term without recourse to trial, opting for refusals pursuant to Rule 34.12(2) can be a smart strategy.
 Montana Band, at para. 5.
 2287913 Ontario Inc. v ERSP International Enterprises ltd.,2017 ONSC 7185 at para. 12 (ERSP International).
 ERSP International, at para. 12
 ERSP International, at para. 7.
 ESRP International, at para. 15.
 ERSP International, at para. 14.
 ERSP International, at para. 14.
 Industrial Alliance, at para. 8.
 Industrial Alliance, at para. 10.
 Industrial Alliance, at para. 12
 Industrial Alliance, at para. 14.
 Industrial Alliance, at para. 14.
 York Region, at para. 15.