In Birhane v. Wong et al, 2021 ONSC 8024, the court dismissed a motion for an oral discovery of a non-party.
The plaintiff sued the defendant physicians for medical negligence. A key issue in the lawsuit is whether the plaintiff provided consent for the procedure in question.
The plaintiff’s facility with the English language is in issue. She was examined for discovery with an interpreter. During the discovery, she gave evidence about a discussion with nurses before she went into the operating room. She said that her husband interpreted the discussion.
The plaintiff was also questioned on whether there was a discussion on consent while she was in the operating room. At times, she said that she could not recall any such discussion and, at other times, she appeared to suggest that there was no such discussion.
The physician who performed the surgery stated on discovery that she was able to communicate with the plaintiff in English and that she obtained consent. The plaintiff’s husband signed the consent form on behalf of the plaintiff.
Following the plaintiff’s discovery, the plaintiff provided defence counsel with information on her husband’s recollection of events. Her husband said that there was no discussion with the physician about the surgical procedure.
The defendant physicians sought a discovery of the husband, who is not a party to the litigation. They argued that the plaintiff’s inability to recall discussions about the surgical procedure amounted to a constructive refusal to answer questions on discussions with the surgeon and nurses regarding the procedure.
Moreover, the physicians argued that the information provided on the husband’s recollection of events was insufficient and, further, that they require the opportunity to examine the husband under oath to test his credibility.
Associate Justice La Horey denied the request. Her Honour held that the defendants did not satisfy the test to examine a non-party, specifically that the moving parties must be unable to obtain the information from other people whom the moving parties are entitled to examine.
Associate Justice La Horey indicated that the fact that the plaintiff has gaps in recollection does not amount to a refusal to answer questions. Moreover, the plaintiff already provided some information from the husband and is willing to provide further information.
In dismissing the motion, Associate Justice La Horey noted that a discovery of a non-party is rare and is only granted in exceptional cases.