The plaintiffs in a medical negligence action brought a motion under Rule 21 of the Rules of Civil Procedure seeking a determination before trial of whether the defendant could summons plaintiffs’ counsel to testify and produce documents related to communications with the plaintiff.
The defendant argued the evidence was relevant to the issue of discoverability in relation to a limitations defence.
The court held that the motion did not raise a question of law in a pleading and therefore was not properly brought under Rule 21.
Issues concerning witness summonses, privilege, waiver, and the admissibility of documents are evidentiary matters best decided by the trial judge.
Discoverability is a fact-based analysis and does not constitute a pure question of law suitable for pre‑trial determination under Rule 21.
