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Witness Excluded For Failing to Be Listed in Trial Management Conference Brief

Written by admin on . Posted in BCSC Civil Rule 12, Uncategorized. 145 Comments on Witness Excluded For Failing to Be Listed in Trial Management Conference Brief


One of the changes in the new BC Supreme Court Civil Rules is the requirement for parties to produce a list of witnesses in their trial brief to be exchanged 7 days prior to a Trial Management Conference.
In addition to this Rule 12-5(28) prohibits a party from calling a witness who was not listed “unless the court orders otherwise“.  The first reasons for judgement that I’m aware of addressing this subrule were recently shared with me.
In the unreported case (Topkins v. Bruce) the Defendant attempted to call an unlisted witness at trial.  Mr. Justice Curtis refused to allow the witness to testify providing the following reasons:
[4] …The new Rules say that you must give a list of your witnesses no later than 28 days before the trial, or the Trial Management Conference.  There is a Trial Management Brief, which happebd to be late filed; that is not a big deal, a late filing, but it just adds to the approach, I guess.  Although the defendant knew that Mr. Simm existed, the Trial Management Brief says “lay witness number one” and “lay witness number two”.  This not only does not conform with the Rules, but if permitted would deliberately frustrate them.
[5]  The purpose of knowing who the witnesses are is so that the other side can prepare their case, and the Judge, if they want, can order a statement concerning the witnesses, as well as estimate the proper lenght of trial.
[6]  At the Trial Management Conference, September 30th, a direction was given that the witness list will be provided at a subsequent date.  The name of the witness was not provided until after that date.  The explanation is taht the address for the witness was not discovered until later.
[7]  In the circumstances of this case, I am not prepared to allow Mr. Simm to testify, because one, I do not think his evidence is going to be particularly relevant in the circumstances of the case; two, his name was not disclosed, although it was known at the Trial Management Conference, and three, he name was not disclosed, although  known, on the date that the Trial Management Conference Judge had directed that his name be given.
To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Discovery Evidence and the Principled Exception to the Hearsay Rule

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.


As previously discussed, one of the limits of examination for discovery evidence at trial is that it is generally only admissible against the person being examined.   Rule 12-5(46) permits the Court to make exceptions to this restriction in appropriate circumstances.  Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, addressing one such exception.
In the recent case (Yamakami v. Whittey) the Plaintiff was injured in an intersection crash.  Fault was contested.  In the course of the lawsuit the Defendant was examined for discovery.  Prior to trial the Defendant died.
The Defendant’s lawyer wished to rely on his examination transcript at trial in support of the Defence case.  Mr. Justice Fitch allowed this finding it was necessary to do so.  Interestingly, although the Court admitted the evidence finding that an examination for discovery created the necessary safeguards to meet the principled exception to the hearsay rule, the Court ultimately placed little weight on the Defendant’s version of events.  In allowing the evidence to be introduced Mr. Justice Fitch provide the following reasons:
[3] Mr. Whittey, who was 81 years of age when the accident occurred, died before trial but after his examination for discovery was completed on May 11, 2010. Counsel for the defendants applied at the outset of the trial to have his examination for discovery admitted in evidence for the truth of its contents under the principled approach to the hearsay rule. The application was opposed. As Mr. Whittey was deceased at the time of trial, the necessity criterion was met. Counsel for the plaintiff argued that despite the existence of process-based substitutes compensating for the loss of an ability to engage in contemporaneous cross-examination of the defendant (the oath, cross-examination and the existence of a verbatim record of the examination for discovery) the evidence Mr. Whittey gave on the examination for discovery was so inherently unreliable that the test of threshold reliability at the admission stage was not met. In oral reasons for judgment delivered November 4, 2011, I concluded that the process-based compensators present in this case provided a satisfactory basis for evaluating the reliability of the evidence in issue. Accordingly, I exercised my discretion to admit the evidence but made clear that it was for me, at the end of the day, to determine the ultimate or actual reliability of the evidence and the weight it should be accorded.

New Practice Direction Issued Clarifying Masters Jurisdiction

Written by admin on . Posted in BCSC Civil Rule 12, Uncategorized.


The BC Supreme Court released Practice Direction 34, effective April 25, 2012, clarifying the matters in which a Master does and does not have jurisdiction.
The most notable change relates to granting Masters authority to preside over Trial Management Conferences which is consistent with a recent amendment, also in force on April 25, 2012, to Rule 12-2(2).

Jury Election Must Be Made With First Notice of Trial Under New BCSC Rules

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials, Uncategorized. 108 Comments on Jury Election Must Be Made With First Notice of Trial Under New BCSC Rules


Unreported reasons for judgement recently came to my attention addressing, for what I believe is the first time since the New Rules came into force, the issue of whether a party can elect trial by jury when a new Notice of Trial is issued if they failed to so elect in the fist instance.  In short the Court held this is not permitted.
In the recent case (Hung v. Sellars, BC Supreme Court Duncan Registry) the Plaintiff was injured in a motor vehicle collision.  The case was set for trial and neither party filed a notice requiring trial by jury.  The trial was adjourned by consent.   The Plaintiff filed a new notice of trial (as is required by BC Supreme Court Practice Direction 25).  The Defendant then filed a notice requiring trial by jury.
The Plaintiff brought an application to strike the Jury Notice.  Mr. Justice Bracken granted the application noting that the Rules only allow a jury notice to by filed with the initial notice of trial.  In doing so the Court provided the following reasons:
[13]  As noted, the authorities have held the election whether the trial be by judge alone or by judge sitting with a jury contemplates that the election will be made promptly after the first notice of trial.  Some latitude is possible where a party seeks to make an election outside the tie limited by the rules in certain restricted circumstances.
[14]  In some cases, such as removal from the fast track process where there is no right of jury trial, the parties can make the eelction upon a new notice of tiral being filed…
[15] In this case, a jury notice, in accordance with the principle in Hoare v. Firestone and Pelech v. Pelech, could have been filed and served after the first notice of trial that was issued in this action.  The jury notice should have been filed and delivered within the rules after the date of the first notice of trial…Therefore the notice requiring trial by jury in this case…is struck as being filed outside the tine allowed by Rule 12-6.
As of today’s date this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

Court Refuses To Sever Liability From Quantum Where Damages Disputed

Written by admin on . Posted in BCSC Civil Rule 12, ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, (Hou v. McMath) refusing to sever liability from quantum in a personal injury trial where the Defendant not only disputed fault but also took the position that “no compensable injury” occurred.
Interestingly the Court did go on to proceed on the issue of ‘fault’ without making a formal negligence finding.  In doing so Madam Justice Kloegman provided the following reasons:
[2] Both parties desired to sever the issue of liability from damages and proceed on the question of liability alone. However, due to the defendant’s position that this accident caused no damage or compensable injury to the plaintiff, I refused to make an order severing liability from quantum. It is basic tort law that without damages there can be no finding of negligence or liability. I suggested instead that we proceed to hear viva voce evidence on the sole issue of “fault” for the accident; that is, who breached the standard of care of the reasonable, prudent driver in the circumstances?
The trial focused on the colour of the light in an intersection collision ultimately finding that the Defendant drove through a red light finding him at fault for the crash.

Quantum Before Liability?

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Rule 12-5(67) allows the BC Supreme Court to order that one issue “be tried and determined before the others“.
In the personal injury context, where fault is contested, it is not unusual for a Court to agree to determine the issue of fault before valuing the case.  The reason being that if a Defendant is found faultless splitting the issues can save both parties the substantial costs associated with proving the value of the claim.
Interestingly, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing the value of a claim before determining the issue of fault.
In yesterday’s case (Simmavong v. Haddock) the Plaintiff was involved in a 2007 head on collision.  The Plaintiff suffered various injuries and the value of her claim was assessed at just over $332,000 in global damages.  In what must be a very rare set of circumstances, the Court did so prior to the issue of fault being addressed.  The parties apparently consented to this turn of events and unfortunately the judgement does not provide any discussion addressing when such an approach is warranted but does provide the following introductory comments:

[1] This trial concerns the plaintiff’s claim for damages arising from a motor vehicle accident, which occurred on June 24, 2007.

[2] Liability for the accident is denied as there is an action yet to be commenced relating to the plaintiff’s daughter.  The parties have agreed to litigate the claim for the plaintiff’s damages only at this time.

The Flexibility of the 7 Day Rule for Jury Strike Applications

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 22, Jury Trials, Uncategorized.


Rule 12-6(5) imposes a 7 day deadline in which to dispute a jury notice. As previously discussed, the former rules of Court permitted parties to get away from this time limit by applying to strike a jury at a pre-trial conference.  With the overhaul of the civil rules does this exception still apply?  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, finding that it does.
In yesterday’s case (Cliff v. Dahl) the Plaintiff was ‘severely injured‘ in a 2007 collision.   The Plaintiff’s claim was set for trial and the Plaintiff filed a jury notice.  The Defendant brought an application to strike the jury notice but failed to do so within the timelines required by Rule 12-6(5).
The Defendant’s application was ultimately dismissed on the merits but prior to doing so Madam Justice Bruce provided the following reasons confirming the 7 day jury strike deadline is not strictly applied under the current rules:
[12] Under the old Rule 35(4)(a), a pre-trial conference judge, the trial judge or a master could make an order that a trial be heard without a jury. The court interpreted this provision broadly; it permitted the application to be made outside the seven day time limit imposed in old Rule 39(27), which is for the most part identical to the new Rule 12-6(5). While the old Rule 35(4)(a) does not appear to have found its way into the new rules, the rationale behind permitting applications outside the strict seven day time limit remains consistent with the intent and purpose of the new rules. The ability to apply to strike the jury notice outside the strict time limit was necessary to ensure a fair trial and the court’s ability to respond to a change in circumstances surrounding the conduct of a trial. Further, it is apparent that a trial management judge has authority to grant the relief claimed by Ms. Dahl without any reference to the seven day time limit: Rule 12-2(9)(b). Lastly, the court has a discretion to extend time limits in appropriate circumstances without the necessity of a separate application: Rule 22-4(2).

$50,000 Damage Advance Ordered As Term of Adjournment of Personal Injury Claim

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 13, ICBC Wrist Injury Cases, Uncategorized.


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the Court’s power to order a damage advance to a Plaintiff as a term of an adjournment order.
In last week’s case (Wood Atkinson v. Murphy) the Plaintiff suffered bilateral wrist fractures in a 2006 collision.  The Defendant admitted full fault for the crash.  The matter was set for trial but ultimately had to be adjourned due to difficulties in obtaining the Plaintiff’s employment records.  As a term of adjournment the Court ordered that the Defendant pay the Plaintiff a $50,000 advance.  In doing so Associate Chief Justice MacKenzie provided the following reasons:

[42] Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) confirmed the jurisdiction of this Court to order advance payments on damages under former Rule 1(12) (now Rule 13-1(19)) as a term of an adjournment of a trial. The advance must be just in all of the circumstances, and the judge making the order must be completely satisfied that there is no possibility the final assessment of damages would be less than the amount of the advance payments. There is no requirement that the cause of the adjournment be the fault of one party, see Serban, at paras. 9-11.

[43] Further guidance is found in the following excerpt from Master Barber’s decision in Tieu v. Jaeger et al., 2003 BCSC 906, at para. 17:

With liability not being in issue, the plaintiff should be put in funds at the earliest possible time. That is a reasonable thing for the plaintiff to ask for. The only thing that is stopping her from getting this money is not a determination of whether she is entitled to it, but as to how much. When it has been conceded that the sum of $20,000 is probably going to be less than or at least one-half of what the future amount she will obtain of $40,000 plus is, I can see no reason not to give her at least $20,000 at this time. To keep her out of pocket means that, especially when need is shown, as it has been in her affidavit, would be a refusal of justice.

[44] In this case, liability has been admitted, and it will be almost seven years from the date of the accident to the conclusion of the trial. The plaintiff is employed, but has problems with chronic pain in her wrists. Counsel are in agreement that an advance is justified in these circumstances.  The remaining issue is the amount that would be just in the circumstances, ensuring that it not be in excess of the potential award for damages at trial.

[45] In my view, an advance of $50,000 is appropriate in all the circumstances.

Examination For Discovery Transcripts and the Adverse Party Limitation

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Although examination for discovery transcripts can be read into evidence at trial, the Rules of Court limit the evidence to being used against “the adverse party who was examined“.  In other words, a litigant can’t use their own transcript to bolster their own case.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this limitation.
In last week’s case (Haughian v. Jiwa) the Plaintiff was involved in a motor vehicle collision.  The Defendant brought a summary trial application seeking to dismiss the claim.  The Plaintiff produced an affidavit which stated that “in my examination for discovery I described precisely how the accident occurred”  and went on to attach “as an exhibit 29 pages for her examination for discovery conducted by counsel for the defendants“.
The Defendant objected to this evidence arguing it was inadmissible.  Mr. Justice Punnett agreed and provided the following reasons explaining the limitation of discovery evidence at trial:

[8] The plaintiff’s affidavit appends portions of her examination for discovery by counsel for the defendants.  The defendants object to the tendering of discovery evidence in this way.

[9] Summary applications are based on affidavit evidence.  However, they are still trials and as such are governed by the rules and evidentiary requirements of a regular trial.  The followingSupreme Court Civil Rules (the “Rules”) are relevant:

9-7(5)  Unless the court otherwise orders, on a summary trial application, the applicant and each other party of record may tender evidence by any or all of the following:

(a)        an affidavit;

…

(c)        any part of the evidence taken on an examination for discovery;

…

[10] However, the breadth of the statement in part (c) above is restricted by Rule 12-5(46) which provides:

(46)      If otherwise admissible, the evidence given on an examination for discovery by a party … may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:

(a)        the adverse party who was examined;

…

[12] The defendants’ objection is that only the defendants can tender the plaintiff’s examination for discovery evidence.  They rely on the rules cited above as well as Tesscourt Capital Ltd. v. FG Nutraceutical Inc., 2011 BCSC 814; Mikhail v. Northern Health Authority (Prince George Regional Hospital), 2010 BCSC 1817; Schwartz v. Selkirk Financial, 2004 BCSC 313; Pete v. Terrace Regional Health Care Society, 2003 BCCA 226; Great Canadian Oil Change v. Dynamic Ventures et al, 2002 BCSC 1295, and Shiels v. Shiels (1997), 29 B.C.L.R. (3d) 193 (S.C.).

[13] I am satisfied that the discovery evidence sought to be introduced by the plaintiff cannot be relied upon by the plaintiff for the truth of its contents.

Opening Statement Visual Aid Admissibility Should Be Canvassed At Trial Management Conferences

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure.


Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, disallowing the use of a PowerPoint presentation in an opening statement before a jury.
In last week’s case (Moore v. Kyba) the Plaintiff was injured in a motor vehicle collision.  Shortly prior to trial the Plaintiff advised the Defendant that he was going to use a PowerPoint presentation in his opening statement.  The Defendant objected arguing this ought to have been canvassed at a Trial Management Conference.  Madam Justice Brown agreed and refused the presentation from being presented to the Jury.  The Court provided the following reasons:

[4] In Brophy v. Hutchinson, 2003 BCCA 21, the British Columbia Court of Appeal sets out the principles which apply to an opening statement.

[24]      The opening’s purpose is to outline the case the party bearing the onus of proof (usually the plaintiff) intends to present.  Counsel’s goal in opening is, or should be, to assist the jury in understanding what his or her witnesses will say, and to present a sort of “overview” of the case so that the jury will be able to relate various parts of the evidence to be presented to the whole picture counsel will attempt to present.

[5] The court continues:

[41]      In an opening statement, counsel may not give his own personal opinion of the case.  Before any evidence is given he may not mention facts which require proof, which cannot be proven by evidence from his own witnesses, or which he expects to elicit only on cross-examination.  He may not mention matters that are irrelevant to the case.  He must not make prejudicial remarks tending to arouse hostility, or statements that appeal to the jurors’ emotions, rather than their reason.  It is improper to comment directly on the credibility of witnesses.  The opening is not argument, so the use of rhetoric, sarcasm, derision and the like is impermissible: see Halsbury, supra, at para.103; Williston and Rolls, The Conduct of An Action (Vancouver: Butterworths, 1982); Olah, The Art and Science of Advocacy (Toronto: Carswell, 1990) at 8-8; Lubet, Block and Tape, Modern Trial Advocacy: Canada, 2nd ed. (Notre Dame: National Institute for Trial Advocacy, 2000).  Against this general background, I will consider the objections the plaintiff now makes to the defendant’s opening address.

[6] I was also provided with Schram v. Austin, 2004 BCSC 1789 and Ramcharitar v. Gill, 2007 Oral Ruling, Docket 01-2332, a decision of Mr. Justice Macaulay.

[7] In Ramcharitar, the defendant did not object to the use of the presentation but to the form and some of the specific content.

[8] At para. 9, Mr. Justice Macaulay said:

Counsel should not expect to use a presentation as an aid during an opening unless he or she has first shown it to opposing counsel and the court, so that any issues about form and content can be addressed in the absence of a jury.

As pointed out in Schram, and as was done here, the proposed use should be raised at a pre-trial conference.  The risk of a mistrial arising otherwise from the improper use of a presentation is simply too great, and any counsel who seeks to rely on the use of a presentation at the last minute, without seeking consent or permission beforehand, may find that the proposed use is not permitted.

[9] Here, there are problems with the content of the Power Point, which include references to the contents of opinions not yet in evidence.  The Power Point would need to be modified before it could be used before the jury.  However, the Power Point was delivered too late to the defendant and to the court to permit this to be done.  As Mr. Justice Macaulay indicated, the Power Point presentation should be dealt with at a trial management conference, it should not be left to the morning of trial to be addressed.  In this case, there was simply no time available to deal with this problem.