In a decision that will be very useful for the practising bar, Master Calum MacLeod has established a list of guidelines on proper practice at examinations for discovery.
In Iroquois Falls Power Corp. v. Jacobs Canada Inc., a commercial case, a dispute arose during the ninth day of discoveries. The plaintiff was being examined. During a lunch break, counsel for the plaintiff met with his witness to discuss an answer that had been given just before the break, in which the witness appeared to his lawyer to have misunderstood the question. That suspicion was borne out during the lunchtime conversation. The witness and his counsel then discussed what the answer should have been. Anticipating some follow-up questions, they flagged some documents to which they expected to refer.
When the examination resumed, counsel for the plaintiff advised the examining counsel of the discussion that had taken place. The examining counsel considered that the consultation between witness and counsel had been improper and brought this motion for directions and sanctions.
Master MacLeod ruled that while the discussion between the plaintiff’s representative and his counsel ought not to have been held without advance notice to examining counsel, no harm had been intended and no directions or sanctions would issue. However, in the course of his reasons, Master MacLeod discussed the Law Society of Upper Canada’s Rules of Professional Conduct and the Canadian Bar Association’s Code of Professional Conduct, and their relationship to practice before the Courts. He reviewed a number of authorities as well, with a view to coming up with some general guidelines for the assistance of counsel.
The decision is well worth reading, particularly for less experienced counsel who might be uncertain about where the bounds of proper discovery conduct actually lie. The 11 points that the Master distilled from the authorities are these:
1. Counsel representing a party who is being examined is entitled to interrupt the examining party for the purpose of objecting to an improper question, placing the objection on the record and either directing the witness to answer under protest or not to answer.
2. Counsel may also interrupt the examiner if necessary to ensure the witness and counsel both understand the question.
3. As a practical matter counsel may sometimes wish to answer a question or to correct an answer but if the examining counsel objects then neither of these are permitted.
4. Counsel may choose to re-examine his own client in order to correct an answer or to clarify or explain an apparent admission or inconsistency. Alternatively he or she may provide the correction or clarification subsequently in writing. In either case, the examining party is entitled to the evidence of the witness and not that of counsel. It is the duty of the witness and not counsel to correct the evidence.
5. Counsel must respect the fact that discovery evidence will include an element of cross examination and should not discuss evidence with the witness during a break.
6. In a lengthy discovery or series of discoveries, counsel may consider it necessary to discuss evidence with the witness. Generally the intention to do so should be disclosed to opposing counsel and if there is an objection it may be necessary to seek leave of the court.
7. If there is a break between rounds of discovery, counsel is free to meet with the client to prepare for the upcoming discovery. It may also be necessary to discuss evidence already given to obtain instructions in regard to discovery motions, to advise the client of the duty to correct answers and to answer undertakings. It is prudent to disclose this intention to opposing counsel.
8. Counsel ought not unnecessarily to oppose reasonable discussions between counsel and client provided they are disclosed. It is legitimate on the resumption of discovery to ask the witness under oath if he or she was coached in any way as to what answers to give.
9. Accusations of professional misconduct ought to be reserved for the clearest of cases based on cogent and persuasive evidence and when such a finding is a necessary and inescapable conclusion.
10. Motions for direction should only be necessary when counsel for the party being examined has refused all requests to conduct him or herself in accordance with the rules and interference has become so extreme as to render the discovery futile.
11. Generally speaking the Court will eschew findings that a counsel has breached the Rules of Professional Conduct as such but will take notice of those Rules in determining what standard is expected of counsel before the courts. The court may have to make findings of fact that could constitute evidence of professional misconduct. In such cases counsel should be afforded reasonable procedural protections.