Facts and Position of Parties
In this personal injury action, the defendant applied for an order that the plaintiff attend a continuation of her examination for discovery by the defendant prior to the upcoming trial of the matter. The first examination of the plaintiff was limited two hours, as it was governed by the fast track rule.
The defendant’s position was that (i) since the discovery was conducted, the plaintiff attempted and failed to return to work at the job that she held at the time of the discovery, and (ii) the plaintiff attempted other employment after her discovery. As a result of these reasons, the defendant argued that it should have the opportunity to discover her on those efforts to work. The plaintiff opposed the application arguing, in part, that there had been no
material change since the first discovery.
To the extent this was an application for the continuation of the examination for discovery, Master Scarth held that it should be dismissed as the previous discovery was stated to be concluded by the defendant. Master Scarth held that there is no continuation as of right once a matter is removed from fast track. Further, Master Scarth notes that the defendant concedes that nothing arose from the documents requested and that no conditions were placed on the removal of the action from fast track.
To the extent that this was an application for a second discovery, Master Scarth held that there was no suggestion that the plaintiff did not provide full and frank disclosure on her first discovery.
Master Scarth accepted the plaintiff’s submission that the complexion of the case had not materially changed - there were no amendments to the pleadings and no new injuries. It was held that the changes with respect to the plaintiff’s employment did not materially change the complexion of the action but rather fell within the rubric of the plaintiff’s claim for loss of future earning capacity.
Master Scarth further stated that the case law places a heavy onus on the party seeking a second discovery and that onus had not been met by the defendant.
This decision highlights the importance of considering placing conditions upon the removal of an action from Fast Track by defence counsel to allow for a second discovery. It further highlights the heavy onus that is placed on the party seeking the second discovery to establish a material change in the circumstances has occurred.