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No Pre Trial Examination Ordered For Witness Willing to Talk Through Counsel

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a witness who is willing to communicate through counsel should not be compelled to attend a pre-trial examination under oath.

In today’s case (Cabezas v. HMTQ) the Plaintiff was involved in a single vehicle accident and sued the Defendants claiming negligent highway maintenance.  In the course of the lawsuit the Plaintiff attempted to speak with and the “Capilano defendants provided a summary of the evidence Mr. Colville was expected to give should the matter proceed to trial. She stated further: “to the extent that you still wish to speak to Mr. Colville, he has asked that this be arranged through us and that we be present.

The Plaintiff brought an application to compel pre trial examination under oath of this witness but this was dismissed with the Court noting that a witness willing to speak through counsel is indeed being responsive.  In reaching this conclusion Master Harper provided the following reasons:

[4]             Rule 7-5(1) provides as follows:

(1) If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may:

(a) order that the person be examined on oath on the matters in question in the action, and

(b) either before or after the examination, order that the examining party pay reasonable lawyer’s costs of the person relating to the application and the examination…

[11]         Rule 7-5 sets out a protocol which must be followed before an application for an order for a pre-trial examination of a witness can be made. The applicant must establish that the proposed witness has refused or neglected on request by the applicant to give a responsive statement either orally or in writing relating to the witness’ knowledge of the matter in question or has given conflicting statements (Rule 7-5(3)(c)(i) and (ii)).

[12]         The fact that the witness has chosen to communicate through counsel does not amount to a refusal to give a responsive statement (Rintoul v. Granger, 2008 BCSC 1852 at para. 24).

[13]          Mr. Colville is agreeable to attending an interview in the presence of counsel.

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