ICBC Law

As previously discussed, Facebook photo production is becoming a common occurrence in personal injury litigation.   Despite the undesirable consequences on privacy expectations it is worth remembering that such photos, much like more conventional surveillance evidence, are not necessarily harmful in and of themselves.  Surveillance evidence is only damaging to a personal injury claim when it depicts activities inconsistent with the Plaintiff’s evidence.  Photographic evidence that does not reach this threshold is really of little value.  This was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (Guthrie v. Narayan) the Plaintiff was injured in a 2009 rear-end collision.  She suffered from chronic soft tissue injuries which were expected to cause on-going problems into the future.  At trial the Defence introduced Facebook photos depicting the Plaintiff on a trip to Las Vegas.  Mr. Justice Goepel found these to be of little value and assessed non-pecuniary damages at $65,000.  In doing so the Court provided the following reasons:

[27] I accept the testimony of Dr. Cordoni and Dr. Badii. I find that Ms. Guthrie sustained soft tissue injuries to the neck and back as a result of the motor vehicle accident. These soft tissue injuries have led to chronic neck and shoulder pain. I find that it is unlikely that there will be any significant change in her condition for the foreseeable future.

[28] I further find that Ms. Guthrie has aggressively attempted to deal with her injuries. She has followed the medical recommendations made to her. She has attended physiotherapy and message therapy. She took a series of painful IMS treatments. She works out regularly. She has done all she can to assist in her recovery.

[29] Unfortunately, however, Ms. Guthrie’s injuries have not resolved. They continue to seriously impact her daily life and will likely do so for the foreseeable future. The injuries have affected all facets of her life. She needs accommodation at work, cannot partake in some sports she formerly enjoyed, must avoid certain social events and even has difficulty when she attempts to cuddle with her boyfriend. She is no longer suited for many occupations and requires accommodation to carry out many of the occupations that are still available to her.

[30] In making these findings, I have not overlooked the pictures posted on Ms. Guthrie’s Facebook page concerning her trip to Las Vegas. Those pictures are of limited usefulness. Ms. Guthrie is seeking compensation for what she has lost, not what she can still do. The fact that she can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident. She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident…

[35] While the subject cases are of general assistance and provide a guideline as to the range of damages awarded in cases with some similarities to the case at bar, each case must be decided on its own facts. Of primary importance in this case is the age of the plaintiff, the manner in which the injuries have impacted on her life, and the medical evidence which suggests that any future improvement is unlikely. I note in the cases cited by the defendant the prognosis for the plaintiffs was much more favourable than that concerning Ms. Guthrie. I award $65,000 in non-pecuniary damages.

In BC the law provides wide protection over confidential settlement discussions to permit parties in a lawsuit to have full and frank resolution attempts.  Typically settlement discussions made on a ‘without prejudice’ basis are protected by the law of settlement privilege and are not admissible in a subsequent trial.

There are exceptions to this general rule, however, and one such exception relates to communications with”threats of an egregious nature“.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, demonstrating this.

In yesterday’s case (Monument Mining Limited v. Balendran Chong & Bodi) the parties were involved in a defamation lawsuit.  In the course of the lawsuit various settlement offers were exchanged.  The Plaintiff sought to introduce these into evidence.  The Defendants opposed arguing these were protected by settlement privilege.  Mr. Justice Goepel concluded the letters contained egregious threats and therefore privilege was lost.  In admitting the letters into evidence the Court provided the following reasons:

[25] In Evergreen Building Ltd. v. IBI Leaseholds Ltd., 2006 BCSC 1190 at para. 16, 58 B.C.L.R. (4th) 294, Kelleher J. said at para. 16:

[16]      Privilege is lost not by making a threat, but by threatening to do something of an egregious nature. For example, a threat to commence an action or to bring a motion does not destroy the privilege attaching to a settlement communication. On the other hand, a threat to commit perjury is not privileged.

[26] I find that the July 12 Letter does contain threats of an egregious nature. The July 12 Letter warns that if the settlement proposal is not accepted, the Clients may  bring claims against Monument, Avocet and their respective directors alleging fraud and other misdeeds and may inform the AIM, the TSX and Haywood Securities Inc. of the alleged fraudulent conduct. Such actions could be devastating for a publically traded company.

[27] Monument and Avocet were not parties to the D8 Litigation.  The reservation of rights set out in the July 12 Letter served no legitimate settlement purpose. The intent of the reservation of rights was to put improper pressure on entities not involved in the D8 Litigation. The threat is of such character that the public interest in its disclosure outweighs the public interest in protecting settlement communications.  Settlement privilege does not extend to the July 12 Letter.

[28] In the result, the Settlement Letters are admissible and will be marked as exhibits 37, 38 and 39 respectively.

Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, discussing the broad discretion that Judges have respecting costs consequences following trial where formal settlement offers have been made.

In last month’s case (Ward v. Klaus) the Plaintiff was involved in a motor vehicle collision.  Prior to trial ICBC tabled a $493,000 settlement offer.  As trial neared the offer was increased to $595,000.  The Plaintiff rejected these offers and went to trial.  At trial the presiding judge awarded just over $434,000.

ICBC brought an application to be awarded post offer costs.  This would have created a ‘costs swing‘ of $149,000.  Mr. Justice Goepel ultimately stripped the Plaintiff of her post offer costs but did not make her pay the Defendants costs reducing the sting of her failure to best the formal settlement offer.  In demonstrating the ‘broad discretion‘ of Rule 9-1 Mr. Justice Goepel provided the following reasons:

[32] Since its inception in 2008, much ink has been spilled explaining the Rule. LexisNexis Quicklaw presently references some 231 decisions in which the Rule has been discussed. From the decisions, some broad principles of general application have emerged concerning how the Rule should be applied.

[33] It is now generally recognized that the Rule provides for the exercise of a broad discretion by trial judges and provides principles to guide in the exercise of that discretion: Roach v. Dutra, 2010 BCCA 264, 5 B.C.L.R. (5th) 95…

[53] For the reasons I have stated, it cannot be said that the plaintiff should have accepted either offer. That is, however, the beginning, not the end of the analysis. Unlike Rule 37 which mandated the outcome regardless of the circumstances, Rule 9-1 gives the court a broad discretion to determine the consequence of a successful offer to settle. While the Rule is intended to reward the party who makes a reasonable settlement offer and penalizing the party who fails to accept it, the several options set out in Rule 9-1(5) allows the court to determine with greater precision the penalty or reward appropriate in the circumstances.

[54] In this case, regardless of the merits of the plaintiff’s case, the defendant’s offers to settle cannot be ignored. To do so would undermine the purpose of the Rule. Having decided to proceed in the face of two not insignificant and ultimately successful offers to settle, the plaintiff cannot avoid some consequences. That said, in the circumstances of this case, to deprive the plaintiff of her costs and have her in addition pay the costs of the defendant would be too great a penalty. It would not be fair or just to require the plaintiff to pay the defendant’s costs after the date of the First Offer. Similarly, however, I find that the defendant should not pay the costs of the plaintiff after the delivery of the First Offer, which costs were only incurred because the plaintiff decided to proceed.

[55] Accordingly, I find that the plaintiff is entitled to her costs up to May 3, 2010. The parties will bear their own costs thereafter.

(Updated March 15, 2012 - an Appeal of the below Decision was dismissed in reasons for judgement released today by the BC Court of Appeal)

If you are harmed through the carelessness of others but signed a ‘waiver of liability‘ prior to being harmed you may be deprived of meaningful legal recourse.  For this reason it is vital to turn your mind to the potential consequences prior to accepting the terms of a waiver.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this topic.

In this week’s case (Loychuk v. Cougar Mountain Adventures Ltd.) two plaintiffs were injured in a zipline accident.  The first plaintiff went down the line but did not reach the bottom.  She was suspended on the line.  At this time the tour guides in charge of the zipline let the second plaintiff go down the line.  She had no ability to stop and “slammed into (the first Plaintiff) at high speed causing injury to both“.

The Defendant company agreed their employees were careless and caused the injuries.  They denied compensation to the Plaintiffs, however, relying on a waiver they require every zipline participant to sign. The Plaintiffs brought a lawsuit arguing the waiver should not be enforced.  Mr. Justice Goepel disagreed and dismissed the lawsuit.  In doing so the Court provided the following reasons:

[30]         The Release was consistent with the purpose of the contract, which was to permit the Plaintiffs to engage in a hazardous activity upon which they, of their own volition, had decided to embark. The most casual review of the document would have revealed to the Plaintiffs that the Release was a legal document impacting on their legal rights to sue or claim compensation following an accident. They asked no questions concerning the terms of the Release. They never indicated to Cougar that they were not prepared to sign the Release.

[31]         There is nothing in the circumstances that would lead Cougar to conclude that the Plaintiffs did not intend to agree to what they signed. In these circumstances, Cougar was under no obligation to take reasonable steps to bring the terms of the Release to the Plaintiffs’ attention.

[32]         That said, Cougar did in fact take reasonable steps to bring the contents of the Release to the Plaintiffs’ attention. Both were given sufficient time to read the Release. The heading at the top of the document and the admonition to read carefully alerted the Plaintiffs that it was a legal document intended to prevent the Plaintiffs from suing or claiming compensation following an accident. Both Plaintiffs acknowledge that they knew from their reading of the Release that it limited in certain circumstances their legal rights to sue. In Mayer, which concerned a release in relation to obtaining a ski pass, the release contained terms in bold lettering similar to that in the case at bar. The court noted that the large bold print should have alerted the most casual reader of the release’s terms. The same considerations apply in this case.

[33]         I do not accept the Plaintiffs’ submission that the reasoning in Karroll should be limited to cases involving hazardous activities in which the participant has some measure of control. Karrollis a case of general application. Its reasoning applies to all contracts.

[34]         Subject to the remaining submissions discussed below, I find the Release is enforceable. A reasonable person in the position of Cougar would not have known that the Plaintiffs were not consenting to the terms of the Release. Cougar took appropriate steps to apprise the Plaintiffs of the terms of the Release.

This case demonstrates the reality that liability releases can prevent lawsuits even when individuals are injured through the clear carelessness of others.  For this reason it is vital to consider the effects of a waiver prior to giving up your right to sue.

(Note: this area of law is still developing, for a further case addressing this issue click here)

Two of the biggest changes under the New Supreme Court Rules are the introduction of Case Planning Conferences and mandatory Trial Management Conferences (CPC’s and TMC’s).

The New Rules give the Court significant powers to make various orders with respect to the conduct of lawsuits at these hearings.  Interesting reasons were recently brought to my attention addressing the limit of the Court to address contested matters at CPC’s and TMC’s.

In the recent case (Vernon v. British Columbia (Liquor Distribution Branch)) the Plaintiff sued the Defendant for wrongful dismissal.  As the lawsuit progressed the parties attended a Trial Management Conference.  At the TMC the Defendant asked for various orders including an adjournment of the upcoming trial and a partial publication ban of the trial.  These applicaitons were contested by the Plaintiff.  Mr. Justice Goepel dismissed the applications finding that TMC’s and CPC’s were inappropriate forums for contested applications.  The Court provided the following reasons:

[21]        The issue in this case is whether counsel’s statements provide a sufficient evidentiary foundation for the orders that the defendant seeks. The applications for an adjournment and a publication ban both require the exercise of judicial discretion to consider competing interests. In the case of the adjournment, the contest is between the defendant’s need for additional time to prepare its case and the potential prejudice to the plaintiff if the case is adjourned. With regard to the publication ban, the court must weigh the salutary effect

[22]        The adjournment and publication ban applications both require a proper evidentiary foundation. Statements of counsel alone are not sufficient. To paraphrase Lambert J.A. in Nichols, where statements of counsel stand alone, it will be a rare case that such statements will be sufficient to justify a finding of fact that would permit the exercise of judicial discretion. This is not such a case.

[23]        While CPCs and TMCs have a role to play in the orderly progress of litigation, they are not generally the forum to determine contested applications. Such applications will usually require affidavit evidence and pursuant to the provisions of Rule 12-2(11) and 5-3(2) applications requiring affidavit evidence cannot to be heard at such conferences. In this case affidavit evidence is necessary to determine the defendant’s applications for an adjournment and a publication ban. Those applications cannot be heard at a TMC.

[24]        This is not to say that a judge cannot make orders at a CPC or a TMC. Clearly, a judge can. Many of the orders contemplated at such a conference will not require applications or affidavit evidence. The Rules allow a judge to make an order absent an application. Many of the orders suggested in the respective rules are procedural in nature and more in the nature of directions. Such orders can be based on the representations of counsel. An example is the present application concerning the order of proceedings at trial.

I recently looked into the issue of location for examinations for discovery where a party to the lawsuit resides out of the Country.  I came across a useful decision (Bronson v. Hewitt) addressing this issue under the former Rules of Court.

In Bronson, a lawsuit was started in the BC Supreme Court, Vancouver Registry.  The trial was scheduled to be heard in Vancouver and all the lawyers involved in the case practiced in Vancouver.  The Defendants lived in South Carolina.  The Plaintiff wanted to force the Defendants to come to Vancouver for examination for discovery.  The Defendants opposed arguing the discovery should take place in South Carolina.  Mr. Justice Goepel agreed with the Defendants.  In doing so the Court provided the following reasons:

Lewis and Browning rely on R. 27(14).  That Rule reads:

Unless the court otherwise orders, or the parties to the examination consent, an examination for discovery shall take place at a location within 10 kilometres of the registry that is nearest to the place where the person to be examined resides.

Lewis and Browning submit that R. 27(14) supports their contention that prima facie a party has a right to be examined at their residence and that the plaintiffs have not filed any material which would lead the court to rule otherwise.

In Banque Indosuez v. Canadian Overseas Airlines Ltd. et al., [1989] B.C.J. No. 930 (S.C.) Skipp L.J.S.C.  reviewed the authorities and concluded:

I respectfully adopt the reasoning of Trainor J. in Hamstra v. B.C. Rugby Union et al., Vancouver Registry C865223 (B.C.S.C.), to the effect that if anyone seeks to vary the prima facie location being the residence of the person sought to be examined the court then looks at what is just and convenient for the person to be examined rather than for the solicitor of the person to be examined.

In Lo v. Lo, [1991] B.C.J. No. 3005 (S.C.) Master Wilson stated:

I understand Banque Indosuez to be authority for this principle, that subrule 14 is the primary determinant of the place for the examination for discovery of persons residing outside of British Columbia.

If the prima facie rule is to be changed then the court looks at what is just and convenient for the person to be examined, not for counsel.

I am of a similar view.  The default position is that non-resident parties are entitled to be examined at their place of residence.  This conclusion is consistent with R. 27(26), which sets out that the rules governing discovery apply so far as practical to persons residing outside the province.   One of those rules is R. 27(14) which sets out that absent consent or a court order, a party is entitled to be discovered at the registry nearest to the party’s residence.  There is no reason why a non-resident party should be treated any less generously than a party who resides in British Columbia.  All parties have a prima facie right to be discovered where they reside.

The court does have the power to order that a discovery take place at a different location.  In making such an order, the court’s main consideration is the convenience of the party being examined.  Convenience of counsel is not a proper basis to compel a party to travel to Vancouver for a discovery.

In the circumstances of this case, it would not be just or convenient to compel Ms. Lewis or Ms. Browning to come to Vancouver.  They are entitled to be examined at their place of residence.  Their discovery will be in Greenville, South Carolina.

This decision was based on the former Rules of Court and to my knowledge no reported decisions address the issue of location for discovery under the New Rules.  The result, however, would likely be identical under the New Rules because the former Rule 27(14) is substantively reproduced at Rule 7-2(11) of the New Rules and the former Rule 27(26) is reproduced at Rule 7-2(27) of the New Rules.

If evidence is not relevant it is not admissible at trial.  So what exactly is relevant evidence in a personal injury lawsuit?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, providing a concise and useful definition.

In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured while involved in a single vehicle accident involving a Geo Tracker.  The lawsuit focused on whether the Tracker was safely designed.   In support of her case the Plaintiff wished to put hundreds of documents into evidence.  The Defendants objected to some of these arguing that they were not relevant.

Mr. Justice Goepel went through the objections one by one and ruled that some of the documents were relevant and some were not.  Before reaching his decisions Mr. Justice Goepel provided the following useful definition of relevant evidence:

[15] To be admissible, evidence must be relevant to the facts in issue and not subject to exclusion under any other rule of law or policy.  Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would appear to be in the absence of that evidence” ( D.M. Paciocco & L. Stuesser, The Law of Evidence (Toronto: Irwin Law,1996) at 19).

[16] In a civil case, the facts in issue are established by the pleadings.  Evidence unrelated to the issues as disclosed in the pleadings is not admissible.

[17] Not all relevant evidence is admissible.  The court must also balance the cost to the trial the process of admitting the evidence.  The judge’s task was described by Sopinka J. in R. v. Mohan, [1994] 2 S.C.R. 9 at 20-21:

Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is “whether its value is worth what it costs.” See McCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule (see Morris v. The Queen, [1983] 2 S.C.R. 190). Whether it is treated as an aspect of relevance or an exclusionary rule, the effect is the same.

[18] While the above passage was written in the context of the admissibility of expert evidence, the same principles must be considered in determining the admissibility of any form of evidence.

When a party to a personal injury lawsuit wishes to use documents at trial those documents have to be disclosed to the opposing side as per the BC Supreme Court Rules otherwise the evidence may not be admissible.  Two recent cases from the BC Court of Appeal have clearly highlighted this.  Today, reasons for judgement were released by the BC Supreme Court considering the scope of documents that need to be disclosed.

In today’s case (Beazley v. Suzuki Motor Coroporation) the Plaintiff called a witness to give expert evidence.  The witness testified that he had limited knowledge of something known as the “Critical Sliding Velocity standard” and that he had “never proposed such a standard to the National Highway Traffic Safety Administration“.

On cross-examination the Defence lawyer produced a letter written by the witness addressed to the National Highway Traffic Safety Administration apparently “supporting the use of a Critical Sliding Velocity Standard“.

The Plaintiff’s lawyer objected to this cross examination arguing that the letter was not listed on the Defendant’s list of documents and therefore could not be used.  Mr. Justice Goepel disagreed finding that documents that are used solely for impeaching an expert wittiness’ credibility do not necessarily have to be listed.  Specifically the Court reasoned as follows:

[7] A party is obliged to list all documents that fall within the purview of Rule 26(1) including those documents that can properly be described as forming part of the solicitor’s brief: Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4^th) 203; Dykeman v. Porohowski, 2010 BCCA 36. Neither Stone, Dykeman or the cases cited therein deal with the use of documents being introduced to impeach the general credibility of an expert witness.

[8] A party who chooses to call an expert vouches for that expert’s credibility. The type and nature of documents that might challenge such credibility are endless. They may include articles, letters, testimony, speeches or statements that the expert has made in the past. There may be other articles which critically challenge the expert’s conclusion. Most documents which go to challenge an expert’s opinion or credibility are not documents which are related to the matter in question in the action. They only become relevant because of the expert’s testimony and do not fall under the purview of Rule 26.

[9] This ruling does not apply to all documents that the defendants may wish to put to this or other witnesses. If a document is otherwise related to a matter in question, it is not protected from disclosure merely because it will be used in cross examination or forms part of the solicitor’s brief.

[10] The August 5, 1994 letter, however, only becomes relevant because of Mr. Heitzman’s testimony. It was not a document that need be listed and the defendant is entitled to use the document in cross examination.

[11] To the extent the plaintiffs object to other documents the defendants might wish to put to Mr. Heitzman, those objections will be dealt with as they arise.

An imporant skill of a trial lawyer is being able to persuade the Court, in appropriate circumstances, to exclude expert opinion evidence that is damaging to your client’s case.  Two of the many objections that can be raised against opposing expert evidence are bias and lack of necessity.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with these areas of the law.

In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 roll-over car crash.  The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.  GMC argued that the vehicle was not negligently designed and further that the Plaintiff was the author of her own misfortune for failing to wear her seatbelt.

In support of their case the Defendants obtained two expert reports.  The first was a report from an engineer (who was an employee of the Defendant GMC) who provided opinions about the handling, stability and rollover characteristics of the vehicle in question and whether the vehicle was defective.  The second was the report of a statistician who addressed the injury risk to belted and unbelted occupants in rollover accidents.

The Plaintiff applied to exclude these reports from evidence.  They argued that the engineer’s employment relationship with the Defendant at the very least created a reasonable apprehension of bias that should disqualify him from acting as an expert.  With respect to the statistician’s report the Plaintiffs argued that this evidence was not helpful for the Court.

Mr. Justice Goepel rejected the Plaintiff’s submissions with respect to bias but did agree with the submissions with respect to the statistical evidence.  In coming to these conclusions Mr. Justice Goepel provided the following useful summaries of these areas of law:

• BIAS

[20] Canadian courts appear to have taken different positions on the issue of whether an expert witness’ bias or perceived bias will disqualify him or her from giving evidence at trial. Some courts have held that for expert evidence to be admissible, the expert must be seen to be absolutely neutral and objective. Other courts have concluded that a lack of objectivity, neutrality and independence are matters that only impact the weight to be afforded that expert. Romilly J. in United City Properties Ltd. v. Tong, 2010 BCSC 111 at paras. 35-68, has exhaustively reviewed the jurisprudence.

[21] The cases are not easily reconciled. Where there is a personal relationship between the proposed expert and the party, where the expert has been personally involved in the subject matter of the litigation or where the expert has a personal interest in the outcome, the expert has not been allowed to testify. Examples of such cases are Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); Royal Trust Corporation of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (Sup. Ct. J.);  Bank of Montreal v. Citak, [2001] O.J. No. 1096 (Sup. Ct. J.); and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617. In cases where the relationship between the expert and the party is more institutional in nature, the evidence has been admitted subject to weight. Examples of such cases are R. v. Klassen, 2003 MBQB 253 and R. v. Inco Ltd.(2006), 80 O.R. (3d) 594 (Sup. Ct. J.).

• NECESSITY

[28] Expert opinion evidence is admissible only where a judge or jury are unable, due to the technical nature of the facts, to draw appropriate inferences. The defendants seek to call Ms. Padmanapan’s statistical evidence in order to establish a causal connection between a failure to wear a seatbelt in the course of a rollover accident and increased injuries. In certain circumstances statistical evidence can be helpful in determining causation:  Laferrière v. Lawson, [1991] 1 S. C.R. 541.

[29] It has been long recognized in British Columbia that a party who fails to use an available seatbelt and sustains injuries more severe than if the seatbelt had been worn will be found to be contributory negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.); Gagnon v. Beaulieu, [1977] 1 W.W.R. 702 (B.C.S.C.).

[30] While there appears to have been statistical evidence led in Yuan and in Gagnon, subsequent cases have held that such evidence is not necessary. In Lakhani (Guardian ad litem of) v. Samson, [1982] B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then was) noted at para. 3:

I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom, and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.

[31] To succeed on the seatbelt defence, the onus will be on the defendants to establish upon a balance of probabilities that the use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s injuries:  Harrison v. Brown, [1987] 1 W.W.R. 212 (B.C.S.C.); Terracciano (Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R. (3d) 328 (S.C.).

[32] The statistical evidence to be led from Ms. Padmanapan is, in my opinion, not necessary and will not assist me as trier of fact in determining the issue of contributory negligence. If the evidence is not necessary, it does not meet the test of admissibility.

When a Defendant is examined for discovery in a BC Injury Claim damaging answers can be read in at trial as evidence against that defendant. A limit to this, however, is that if there is more than one defendant in a lawsuit the evidence can generally only be used against the defendant who was examined (click here to read a previous post discussing this restriction).

Reasons for judgment were released today demonstrating an exception to this restriction.  In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 motor vehicle collision.   The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.

In the course of the lawsuit representatives of GMC were examined for discovery.  The Plaintiff obtained admissions which were useful in advancing their lawsuit.  Subsequent to this, GMC sought bankruptcy protection under Chapter 11 of the US Bankruptcy Code.  Because of the Bankruptcy the plaintiff’s could no longer compel the GMC representatives as adverse witnesses.   The case was set for trial and the Plaintiff wished to read in the discovery answers of these witnesses as against the other defendants.  The other defendants opposed this raising the limitation set out in Rule 40(27) of the BC Supreme Court Rules.

Mr. Justice Goepel agreed that the restriction in Rule 40(27) “does not allow exceptions and, accordingly, the discovery evidence would not be admissible pursuant to Rule 40(27) as against anyone other than GMC“.

However, the Court went on to hold that, despite this restriction, the Court could permit this evidence in as against the other defendants under Rule 40(4) of the rules of Court due to the circumstances of this case.    Below I set out Mr. Justice Goepel’s useful analysis:

[27] Rule 40(4) deals with the evidence of witnesses who are otherwise unavailable.  Rule 40(4) gives the court the discretion in certain defined circumstances to allow a transcript of prior evidence given by the witness to be put in evidence.  The Rule reads:

40(4)  Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence.

[28] Mr. Leffert and Mr. Uthe are both residents of the United States.  They are not subject to this Court’s subpoena powers and the plaintiffs cannot compel their evidence at trial.

[29] The Rule is discretionary in nature.  If the witness cannot attend for one of the stated reasons the court may, not must, allow a transcript of prior testimony to be put into evidence, subject only to the requirement of prior notice.  In determining whether or not to allow the evidence to be admitted, the court must consider matters of trial fairness and potential prejudice to the parties.

[30] Rule 40(4) has been the subject of several recent decisions.  Most have concerned applications to introduce a deceased plaintiff’s examination for discovery transcript.  The authorities were reviewed and considered in Malik Estate v. State Petroleum Corp., 2007 BCSC 934, 74 B.C.L.R. (4th) 330.  In Malik, the plaintiff sought to admit into evidence the transcript of the examination for discovery of Mr. Malik that had been conducted by the defendant.  Mr. Malik had since died. After reviewing previous decisions dealing with Rule 40(4) and considering at some length the restated rules concerning the admission of hearsay evidence, Burnyeat J. concluded that the transcript of Mr. Malik’s discovery was admissible.

[31] The arguments in favour of admissibility are much stronger in this case than in Malik.  In Malik, the plaintiff was seeking the admission of discoveries conducted by the defendant.  Such discoveries often present an incomplete version of the case as an examiner may choose to refrain from examining on some aspect of the case in order to avoid revealing trial tactics.  The potential for prejudice in such cases is great, particularly when the witness is deceased and the transcript is the only evidence of that witness that will be before the court.

[32] That is not the situation in the case at bar.  Here the examination was conducted by the plaintiffs.  It was conducted with the intent that the evidence would be read in at trial.  Absent the bankruptcy, Leffert and Uthe could have been called as adverse witnesses and their evidence would have been admissible against all defendants.

[33] There is minimal prejudice to the remaining defendants if the evidence is admitted.  Mr. Leffert and Mr. Uthe are clearly allied with the GM defendants.  There is no reason to believe that they would not voluntarily attend at the trial if the GM defendants requested their attendance.  If the evidence is admitted the remaining GM defendants can call Mr. Leffert or Mr. Uthe to explain any admissions that they may have made.

[34] It may well be pursuant to the Letters of Request that the plaintiffs could again obtain the evidence of Mr. Leffert and Mr. Uthe and then lead that evidence at trial.  Rule 1(5) seeks to secure the just, speedy and inexpensive determination of every proceeding on its merits.  To put the plaintiffs to the cost and expense of again examining these witnesses would be contrary to and the antithesis of Rule 1(5).

[35] Rule 40(4) refers to transcripts of other evidence.  The plaintiffs in this case wish only to put into evidence those parts of the transcripts which assist their case.  While admission of only a portion of the evidence may be objectionable in other circumstances, such as when the witness is deceased, I will allow the plaintiffs in this case to submit only portions of the transcript, subject to the defendants’ right to request that other parts of the discovery that are reasonably connected to those portions already introduced be also put into evidence:Foote v. Royal Columbian Hospital, (1982) 38 B.C.L.R. 222 (S.C.).

[36] Accordingly, the plaintiffs can read into evidence, pursuant to Rule 40(4), portions of the examinations of Mr. Leffert and Mr. Uthe.  That evidence will become evidence at large and will be admissible for and against all parties. The plaintiffs must 14 days prior to trial specify the part of the discovery evidence that they intend to be given at trial.  The remaining GM defendants will have the right to request that other parts of the discovery that are reasonably connected to those parts given in evidence also be put into evidence.

Now to continue my effort to cross reference civil procedure cases that I write about with the soon to be in force New BC Supreme Court Civil Rules.

Rule 40(27) will be replaced with the new Civil Rule 12-5(46).  With respect to the restriction of who the discovery evidence can be used against, the new rule seems to be in line with the current rule.

Rule 40(4) is replaced with Rule 12-5(54) with identical language.  Accordingly, this case should retain its value as a precedent once the new BC Supreme Court Civil Rules come into force.