A recent decision arising out of a refusals motion “outlines the various bases on which questions are refused and provides an excellent summary of the law with regard to each category of refusal,” says Alexandra Roman, associate at Bogoroch & Associates LLP.
The motion stemmed from a medical malpractice action arising out of the treatment and care received by the plaintiff, Basdeo Gurprasad, in connection with a 2014 elective kidney transplant and post-operative care. In Gurprasad v. Kim, the plaintiff sought to compel the defendant doctors to answer questions allegedly improperly refused at their discoveries.
One of the first takeaways Roman noted was on the question of proportionality. The court reiterated that litigation is not to be too expensive: consideration ought to be given to the time and expense associated with answering questions or producing documents. But “the more complex and interesting aspect of the decision was the court’s discussion with respect to refusals that elicit opinion evidence and hypothetical questions, and questions that may require one defendant to comment on the conduct of a co-defendant,” she notes.