Can a party decline to attend for discovery if there has not been complete discovery of documents by both parties?

British Columbia, Canada


The following excerpt is from S.L.L. v. D.S.L., 2005 BCSC 1358 (CanLII):

Counsel advised they could not find authority on the point. I agree that there are few cases, but there are some. I would note the comments of the author of Discovery Practise in British Columbia [1] and the comments of Esson J.A. in Pearl v. Pacivic Enercon Inc. [2] (also a case of a party applying to compel the attendance of the other party after a default in appearance at the appointment) at para. 10: The issue resolves itself to this: Whether as a matter of principle a party can decline to attend for discovery if there has not been complete discovery of documents by the other side and complete production of all documents which should be disclosed and produced. In my view, there is no absolute rule to that effect. It is undoubtedly desirable in general that discovery of documents should be completed before oral discovery takes place but, especially in commercial litigation which regularly involves a large quantity of paper as to which there can be many varying opinions as to whether or not it is relevant, there must always be exceptions. It is almost inevitable that, on the examination for discovery of a party such as the defendant here, there will come to light the possibility that there are some relevant documents which have not been produced.

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