As court reporters the world over know, lawyers regularly fall into dispute as to whether a given discovery or cross-examination question is proper. What is notable in these disputes is the rarity with which counsel cite to actual case law in attempting to persuade the other side of their position.  This article addresses five common objections and what courts have had to say about their propriety.

1. "That's a hypothetical"

A Google search turns up multiple legal articles suggesting, without reference to any authority, that hypothetical questions are improper and ought not to be answered at an examination for discovery.  Yet a few keystrokes plugged into Quicklaw proves this not to be so.   As noted by Master Peppiatt in an oft-cited 1995 decision, "There is nothing wrong with a hypothetical question." [i]  Another frequently cited case confirms such questions should be answered provided they are relevant and not overly broad or vague. [ii]

2. "Asked and answered"

Counsel for the examined party often refuse a question asked more than once on the basis it was "asked and answered".  At least one case appears to support the validity of this objection.[iii]  In that case multiple questions had been refused on the basis they had already been asked and answered, and the master upheld the refusals.

3. "That calls for a legal conclusion"

Whether this objection is improper depends on the context.  It is perfectly permissible to ask for a party's position on a question of law.[iv]  It is nonetheless improper to ask the witness a question that calls for a legal conclusion.[v]   Asking the witness to interpret a statutory provision would thus be improper, generally speaking, while asking for the party's position to the same question would not, provided it is relevant.

4. "The document speaks for itself "

A number of cases seem to affirm that this time-worn objection is indeed appropriate.[vi]  The court's thinking seems to be that if the witness is simply asked what a particular document says, the answer is irrelevant and need not be provided.

5. "She's not required to give you her opinion"

Lawyers occasionally object to questions on the basis they call for the witness' opinion, rather than her knowledge, information or belief.  In fact, according to one frequently cited case, there is no prohibition per se against asking for opinions on examination for discovery, provided the conclusions sought are related to subjects within the witness' everyday expertise, or to which expertise she has ready access.[vii]

Footnotes

[i] Air Canada v. McDonnell Douglas Corp., [1995] O.J. No. 195 (Gen. Div.).

[ii] Motaharian (Litigation guardian of) v. Reid, [1989] O.J. No. 1947 (H.C.).

[iii] Panetta v. Retrocom Mid-Market Real Estate Investment Trust, [2013] O.J. No. 1984 (S.C.J.), paras. 69-72, 80-82.

[iv] Six Nations of the Grand River Band v. Canada (Attorney General), [2000] O.J. No. 1431 (Div. Ct.), paras. 9, 11 and 14.

[v] Dunn v. Chubb Insurance Co. of Canada, [2010] O.J. No. 1669 (S.C.J.), para. 18; Waquan v. Canada, [2003] A.J. No. 1290 (Q.B.), para. 66.

[vi] Kossow v. Canada, [2008] T.C.J. No. 379; Stevenhaagen v. Kingston General Hospital, [2008] O.J. No. 1001 (S.C.J.); Hood v. Prince Albert (City), [2014] S.J. No. 407 (Q.B.).

[vii] Air Canada, supra.

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