ICBC Law

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.

As I’ve previously written, evidence given by a party at examination for discovery can be damaging.  The opposing side can read in portions of the transcript to the trial judge in an effort to advance their case or hurt yours.

A limit on this is relevance.  If the proposed discovery questions and answers are not relevant (even if no objection to relevance was made at the examination for discovery) a trial judge can keep the evidence from going in.  Reasons for judgement were released yesterday by the BC Supreme Court, Victoria Registry, dealing with this practice point.

In yesterday’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey.  The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet.   At trial the Plaintiff’s lawyer attempted to read in portions of the examination for discovery evidence obtained in pre-trial investigations.  Mr. Justice Macaulay refused to let certain portions of the proposed evidence in on the basis that it was not relevant.  While the result reached in this case is very fact specific the Court provided the following useful summary of the law of relevance and discovery evidence:

[4] The subrule, as applicable here, reads:

(27)      (a)        If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 27(4) to (12) may be given in evidence at trial, unless the court otherwise orders, but the evidence is admissible only against

(i)         the adverse party who was examined,

(ii)        the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 27(4) to (12), or                      …

[5] A plain reading of Rule 40(27)(a) strongly suggests that the evidence an examining party seeks to read in must be admissible in the usual sense; that is, the evidence must be relevant and not subject to any exclusionary rule. Even if the evidence is admissible, the wording further suggests that the court has a residual discretion to exclude it. In my view, the latter requires me to consider whether admitting the evidence at this stage of the trial would result in unfairness…

[11] I must determine questions of relevance having regard to the issues framed in the pleadings. Throughout, I have applied the description of relevance that Cory J. set out in R. v. Arp, [1998] 3 S.C.R. 339, 166 D.L.R. (4th) 296 at para. 38:

38        … To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. [Citation omitted.] As a consequence, there is no minimum probative value required for evidence to be relevant. [Citation omitted.]

As is well known, questions of relevance are largely determined by applying common sense and experience within the above framework.

[12] I also take into account the more recent statement of the Supreme Court of Canada in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at para. 30:

[30]      Relevance can only be fully assessed in the context of the other evidence at trial. However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot wait for the conclusion of the trial for resolution. Depending on the stage of the trial, the “context” within which an item of evidence is assessed for relevance may well be embryonic. Often, for pragmatic reasons, relevance must be determined on the basis of the submissions of counsel. The reality that establishing threshold relevance cannot be an exacting standard is explained by Professors D. M. Paciocco and L. Stuesser in The Law of Evidence (4th ed. 2005), at p. 29, and, as the authors point out, is well captured in the following statement of Cory J. in R. v. Arp, [1998] 3 S.C.R. 339, at para. 38 …

As readers of this blog know the BC Supreme Court Rules are being overhauled effective July 1, 2010.   The Rule discussed in this post is reproduced in almost identical form and can be found at Rule 12-5(46) so this case ought to retain its value as a precedent moving forward.