Under subrule 31.11(5) the examination for discovery of a person under disability may be read in or used in evidence at the trial only with leave of the trial judge. This subrule affords the plaintiff full protection as regards the use at trial of any transcript of his examination for discovery. In my view given the conflict in psychiatric evidence as regards the plaintiff’s capacity to testify, the plaintiff should be examined for discovery on his own behalf and the ultimate issue of his capacity to testify left to the trial judge, as was done in Emberton v. Wittick et al (1985), 6 C.P.C. 89 (Ont M.C.). The trial judge will have the advantage of live testimony and will not be required to decide the issue of capacity solely on the basis of transcripts and conflicting medical reports.
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