BC Court of Appeal Discusses Documents Used in Cross Examination and Disclosure Requirements

Further to my recent post discussing this topic, reasons for judgement were released today by the BC Court of Appeal discussing parties responsibilities to disclose documents they intend to use at trial for cross-examination purposes.
In today’s case (Cahoon v. Brideaux) the Plaintiff was injured in a BC motor vehicle collision.  The crash was described as a “minor rear ender“,  Despite the minor vehicle damage the Plaintiff claimed serious and prolonged injuries.  She asked the jury to award her damages of over $1.3 million.  The jury rejected much of the Plaintiff’s claim and assessed damages of just over $34,000.
The Plaintiff appealed on various grounds arguing that she was deprived of a fair trial.  One of the arguments on appeal was an allegation that the Defence lawyer ‘ambushed‘ the Plaintiff during cross examination by using a document that ‘had not been properly described in the list of documents’.  Specifically the Plaintiff testified during trial that she had “clear title” on her home.  The Defence lawyer then challenged this with a copy of a mortgage which contradicted the Plaintiff’s evidence.  This document was listed on the Defence Lawyer’s list of documents but was not identified in a clear manner.
The BC Court of Appeal held in 2 recent cases (click here and here to read about these) that if parties fail to adequately describe privileged documents in their list then the evidence may not be allowed in at trial.  The Plaintiff cited these cases as precedents.  The Court of Appeal rejected the Plaintiff’s argument and distinguished these cases.  In concluding that no prejudice arose from the failure to adequately describe the mortgage document the Court provided the following reasons:

[39] However, in this case, no similar prejudice resulted from the failure of the respondents to describe the mortgage copy in compliance with Rule 26(2.1) since the trial was already underway when the document came into existence and into the possession of defence counsel.  Moreover, in contrast to Stone, the information in the copy document was known to Mrs. Cahoon – the original mortgage was her own document.  In the context of this discussion, the photocopy was evidence of an inconsistent out-of-court statement made in writing by Mrs. Cahoon before the trial.  I do not understand Stone to stand for the proposition that cross-examining counsel’s possession of such evidence must be disclosed to the witness before cross-examination on the statement will be permitted or, to frame the proposition as Mrs. Cahoon frames it, that to permit cross-examining counsel to surprise a witness with such a statement is improper “trial by ambush”.  Such a rule would insulate witnesses against the effects of cross-examination on prior inconsistent statements and would undermine the search for truth in the litigation.  As well, it would be contrary to the purpose identified in Blank for which litigation privilege is granted.

[40] In summary, Mrs. Cahoon made false statements (that her home was “clear title” and that she had no mortgage on it, let alone one for $800,000) and defence counsel confronted her with the copy of the mortgage and demonstrated the falsity of her earlier answers.  Mrs. Cahoon gave an innocent explanation for her false answers – she said she had been mistaken – and she amplified her explanation in re-examination.  Her counsel called further evidence from the credit union’s solicitor to explain the transaction and to support Mrs. Cahoon’s explanation of her inconsistent answers.  Counsel for both parties addressed the jury as to the weight and significance they should attach to this evidence.

[41] All of this was relevant to Mrs. Cahoon’s credibility, which was a central issue in the case.  There was nothing improper or unfair in the way in which defence counsel dealt with this evidence at trial and I would reject this ground of appeal.

This case is worth reviewing in full for all BC injury lawyers.  In addition to the above topic, the BC High Court gives extensive reasons on the role of lawyers in advancing their client’s claims and the type of arguments that are permissible before juries.

Cahoon v. Brideaux, describing privileged documents, disclosure, Jury Trials, lawyer's brief privilege, List of Documents, litigation brief, privileged documents

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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