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Under the former case law, where the rules provided for questions “relating to any
matter in issue,” the scope of discovery was defined with wide latitude and a question
would be proper if there is a semblance of relevancy: Kay v. Posluns (1989), 1989
4297 (ON SC), 71 O.R. (2d) 238 (H.C.J.); Air Canada v. McConnell Douglas
Corp. (1995), 1995 7147 (ON SC), 22 O.R. (3d) 140 (Master), aff’d
(1995), 1995 7189 (ON SC), 23 O.R. (3d) 156 (Gen. Div.). The recently
amended rule changes “relating to any matter in issue” to “relevant to any matter in
issue,” which suggests a modest narrowing of the scope of examinations for
discovery.
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The extent of discovery is not unlimited, and in controlling its process and to avoid
discovery from being oppressive and uncontrollable, the court may keep discovery
within reasonable and efficient bounds: Graydon v. Graydon (1921), 1921
444 (ON SC), 67 D.L.R. 116 (Ont. S.C.) at pp. 118 and 119 per Justice Middleton
(“Discovery is intended to be an engine to be prudently used for the extraction of
truth, but it must not be made an instrument of torture …”); Kay v.
Posluns (1989), 1989 4297 (ON SC), 71 O.R. (2d) 238 (H.C.J.) at p.
246; Ontario (Attorney General) v. Ballard Estate (1995), 1995 3509 (ON
CA), 26 O.R. (3d) 39 (C.A.) at p. 48 (“The discovery process must also be kept within
reasonable bounds.”); 671122 Ontario Ltd. v. Canadian Tire Corp., [1996] O.J. No.
2539 (Gen. Div.) at paras. 8-9; Caputo v. Imperial Tobacco Ltd., [2003] O.J. No. 2269
(S.C.J.). The court has the power to restrict an examination for discovery that is
onerous or abusive: Andersen v. St. Jude Medical Inc., [2007] O.J. No. 5383 (Master).
•
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The witness on an examination for discovery may be questioned for hearsay
evidence because an examination for discovery requires the witness to give not only
his or her knowledge but his or her information and belief about the matters in
issue: Van Horn v. Verrall (1911), 3 O.W.N. 439 (H.C.J.); Rubinoff v. Newton, 1966
198 (ON SC), [1967] 1 O.R. 402 (H.C.J.); Kay v. Posluns (1989), 1989
4297 (ON SC), 71 O.R. (2d) 238 (H.C.J.).
The witness on an examination for discovery may be questioned about the party’s
position on questions of law: Six Nations of the Grand River Indian Band v. Canada
(Attorney General) (2000), 2000 26988 (ON SCDC), 48 O.R. (3d) 377
(S.C.J.).”
[47] To be relevant, the evidence must increase or decrease the probability of the truth of the
facts in issue “as a matter of common sense and human experience.” Relevance is about the
tendency to support inferences: “[t]o be logically relevant, an item of evidence does not have to
firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply
tend to ‘increase or diminish the probability of the existence of the fact in issue.”: R. v. Arp.,
[1998] 3 SCR 339 at para 38.
[48] Cameron, J. in Inco v. McGrath 2005 CarswellOnt 2651 states at para. 27:
“The court’s role on a refusals motion is to rule on the propriety of questions which were
asked and refused. To the extent that this is a screening function, it is a wide screen. Any