Rule 288 permits a party to rely on answers given during examination for discovery of an adverse party as evidence at trial. Rule 289 provides that the Court may order additional portions of the examination for discovery to be included if they should not be omitted.
In Mediatube Corp. v. Bell Canada, an action for patent infringement, Bell was seeking an order requiring Mediatube to include corrected answers as part of their read-ins; objecting to Mediatube’s inclusion of refusals in their read-ins; and to limit the evidentiary effect of documents included by Mediatube as part of their discovery answers.
In Weatherford, Justice Phelan held that qualifying read-ins should be ordered:
- where the witness misunderstood something in the question put to him,
- where the passage read-in by the plaintiffs misrepresents what the witness was saying, or
- where the passage read-in by the plaintiffs lacks necessary context or subject matter
While Bell’s corrected discovery answers did not squarely fit into these criteria, Justice Locke ordered the plaintiff to include any corrections provided by the defendant in their read-ins, holding:
 I am sympathetic to the plaintiffs’ argument that the defendant could adduce its own evidence to contradict the discovery answers it originally gave, and there is therefore no need in these circumstances to force the plaintiffs to include the corrected answers as part of their evidence. However, in my view it would be a greater wrong if the plaintiffs’ read-in evidence of the defendant’s answers were to omit the corrections and thereby misrepresent what the defendant actually answered in the end. In order to ensure that the evidence read-in fairly reflects the true responses given (as contemplated in Weatherford at para 2), the corrected answers must be included. If the defendant indeed has the right to correct its answers (which is agreed), then surely that must include the right to supersede its original answers.
With regards to reading-in refusals, Justice Locke held that a refusal is not an answer that can be read-in, unless some partial answer was provided as part of the refusal. Furthermore, refusals are not relevant as the issue of costs. If an improper refusal has been made, then the proper recourse is a motion to compel.
The parties were in agreement for the most part with regards to the evidentiary effect of documents included as part of the read-ins under Rule 288. Bell did not object to Mediatube’s inclusion of documents, only noted that such documents can “only clarify the discovery answers to which they relate and cannot be relied on for the truth of their contents.” Mediatube agreed that the documents are inadmissible hearsay.
A copy of the decision can be found here.