This recent decision delves into Rule 34.12(1) which requires a party to provide a reason for refusing to answer a question during an examination for discovery.
Specific to this case was the fact that the defendant deponent, in many cases, gave one reason for refusing to answer a question during discovery questioning, and subsequently relied on different reasons during a motion to compel the deponent to answer the impugned question.
In this case, the opposing (questioning) party took issue with the “change” in the deponent’s foundational basis for some of the refusals, and the court on their own initiative asked counsel to file a factum squarely addressing the issue of whether a deponent can expand or alter the reason for the refusal post-discovery.
Following a detailed analysis on this point, the court effectively concluded that the initial reason given for the refusal is largely of little importance because the court will typically attempt to determine whether the question was proper, and not whether the reason given for refusing the question was proper or appropriate. Put another way, a party may get the reason for a proper objection wrong, or may even fail to give a reason at all, but in the end, the court is only concerned about whether the refusal to answer the question was a proper refusal: “the focus on a refusals motion is to obtain ‘a ruling on the propriety of a question.’”
In the end, the Associate Judge concluded that the “court may consider reasons for refusal argued on a motion beyond the reasons specifically provided during the Discoveries.”
Although it appears unfair to allow a party to tailor their position after the fact, the reality is that if the question was improper, it shouldn’t lose that status. Illustratively, a question refused on the basis of relevance could create a maelstrom of debate at the discovery, leaving the questioner very frustrated that the question wasn’t answered if it was clearly relevant: however, if the court ultimately concluded that the question was relevant but still nonetheless improper because it was a question about privileged communication, then the questioner was not entitled to an answer despite the fact that the questioner was correct in being upset that the question was being refused on relevancy alone at the discovery.
An interesting debate is who should bear the cost of getting the objection wrong when the question ultimately turns out to be improper on the basis of other (unarticulated) reasons. Is it the person asking the question on the pretence that they should be held accountable to ask only proper questions, or is it the deponent who needs to be encouraged to articulate the proper reasons for an objection, and not be rewarded for changing their position at a later time to the surprise of the questioning party? Perhaps, it is a wash, but maybe one day a court will squarely addresses this issue in a cost ruling.
Gurprasad v. Kim, 2022 ONSC 5753
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc5753/2022onsc5753.html