A-372-76
Rivtow Straits Limited (Appellant) (Plaintiff)
v.
B.C. Marine Shipbuilders Limited (Respondent)
(Defendant)
Court of Appeal, Pratte, Urie and Le Dain JJ.—
Vancouver, December 2 and 3, 1976.
Practice—Examination for discovery—When questions
asking for expressions of opinion may be put—Practice of
provincial courts not followed.
Appellant is seeking an order directing an officer of the
respondent company to answer certain questions on discovery.
Held, the judgment of the Trial Division is set aside in part.
Questions asking for the expression of an opinion during an
examination for discovery are not permissible unless the exper
tise of the witness is put in issue by the pleadings.
The Queen v. Irish Shipping Ltd. [1976] 1 F.C. 418,
followed. Westcoast Transmissions Co. Ltd. v. Canadian
Phoenix Steel and Pipe Limited [1971] 1 W.W.R. 241,
disagreed with.
APPEAL on examination for discovery.
COUNSEL:
J. B. Molson for appellant (plaintiff).
John R. Cunningham for respondent
(defendant).
SOLICITORS:
Bull, Housser & Tupper, Vancouver, for
appellant (plaintiff).
Macrae, Montgomery, Spring & Cunning-
ham, Vancouver, for respondent (defendant).
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is an appeal from a judgment
of the Trial Division dismissing an application
made by the appellant for an order directing
Robert W. Brown to answer certain questions that
were put to him when he was examined for discov
ery as an officer of the respondent.
Most of the questions that Mr. Brown refused to
answer, namely questions 132, 156, 250, 252, 253
and 254 asked for Mr. Brown's opinion on matters
within the field of his expertise. In The Queen v.
Irish Shipping Ltd. ([1976] 1 F.C. 418), this
Court has decided that questions asking for the
expression of an opinion were not permissible
during an examination for discovery unless, per
haps, the witness is an expert whose expertise is
put in issue by the allegation of the pleadings.
Counsel for the appellant acknowledged that the
questions put to Mr. Brown did not come within
the possible exception mentioned in that decision.
He argued, however, that the exception to the rule
had been expressed too narrowly in that decision
and that it should be widened so as to coincide
with the exception recognized by the British
Columbia Court of Appeal in Westcoast Trans
missions Co. Ltd. v. Canadian Phoenix Steel and
Pipe Limited [1971] 1 W.W.R. 241. I do not
agree. Whatever be the practice in the courts of
the various provinces, I am of opinion that, during
an examination for discovery held under the Rules
of the Federal Court, questions asking for a mere
expression of opinion, if permissible at all, are
permissible only if they are put to a witness whose
expertise is put in issue by the allegation of the
pleadings. It follows that, in my view, the Trial
Division was right in refusing to direct Mr. Brown
to answer questions 132, 156, 250, 252, 253 and
254.
As to questions 229 and 239 that Mr. Brown
also refused to answer, they probably could have
been more aptly worded. However, I am of opinion
that the respondent has failed to show any valid
reasons why they should not have been answered.
For these reasons, the judgment of the Trial
Division will be set aside and Mr. Robert W.
Brown will be directed to answer questions 229
and 239. The respondent will be entitled to his
costs both in this Court and in the Trial Division.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.