The Defendants in this medical malpractice Action appealed an Order denying them the opportunity to question for discovery the mother of the infant Plaintiff. The Appeal was dismissed.

The infant was born in 2010 and suffered from several disabilities resulting from the alleged negligence of the Defendants with respect to the care provided to her and her mother at the time of birth. When the father died in 2017, the present Litigation Representative, a practising solicitor, was appointed in his place by Consent Order.

The Appellants argued that the infant Plaintiff’s mother was and had been “the plaintiff’s sole surviving parent, sole caregiver, and the recipient of allegedly negligent medical care during her pregnancy, and during labour, and delivery”. If they were denied Questioning, the Appellants argued that they would be subjected to a “trial by surprise”.

In the Order under Appeal, the Chambers Judge dismissed the Application to question the mother. He held that the mother was not a party “adverse in interest” under Rule 5.17(1)(a), and that despite any residual discretion to allow her Questioning, questioning her was not consistent with the fundamental purposes of the Rules.

On Appeal, the Court held the Rules confirmed the long-standing Alberta practice not to permit pre-trial questioning of every possible witness. Rule 5.17(1)(c) specifically deals with questioning where a litigation representative has been appointed. While it permits the questioning of the litigation representative and the person represented, the Rule does not provide for the questioning of any other person who might have important information about the litigation.

The jurisprudence under this Rule should not be read as holding that any witness who stands to benefit from the action and who has evidence that would enhance speed, economy, fairness and disclosure can be questioned.

The presence of witnesses with relevant and material information could arise in many types of litigation, but that does not mean that they can all be questioned before trial. If the Appellants are taken by surprise they are not without remedy, since they can apply for a mid-trial adjournment to make inquiries, or to assemble expert evidence on unexpected issues.