More on the Affidavit Evidence Prohibition At TMC's and CPC's


Further to my recent post on this topic, the law regarding the Affidavit Prohibition at Case Planning Conferences and Trial Management Conferences appears to be taking shape.  Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a common sense approach to this prohibition.
In this week’s case (Enns v. Cahan) the Plaintiff sued for damages under the Family Compensation Act.  A trial management conference was held and the Defendant brought an application to strike the Plaintiff’s Jury Notice.  The Defendant did not provide any affidavits in support of his application relying only on the pleadings and an expert report which was intended to be introduced at trial.  The Defendant argued the case was too complex for a jury.
The application was dismissed with Madam Justice Gray finding that the case could appropriately be heard by a Jury.  Prior to making this finding the Court provided the following useful reasons about when it’s appropriate for a contested application to be heard at a TMC given the affidavit evidence prohibition:

[9] Rule 12-2(11) provides that:

(11)  A trial management conference judge must not, at a trial management conference,

(a) hear any application for which affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

[10] Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his application could proceed without affidavit evidence and on the basis of submissions by counsel alone. Mr. Brun provided the Court with a copy of the Bruce-Aldridge report and seeks to rely on that and the statement of claim as the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns that Mr. Cahan’s application requires evidence and that it is therefore one of the prohibited orders set out in Rule 12-2(11).

[11] The new Rules include Rule 1-3 as follows:

(1)  The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(2)  Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in dispute, and

(c) the complexity of the proceeding.

[12] The new Rules have procedures which enable the court and the parties to design the procedure necessary to resolve a particular issue which is in question. The question of whether an application requires affidavit evidence will not always be determined by what remedy is sought. The question of what is in dispute will play a role, as well. In this case, Mr. Brun’s submissions are based on the Bruce-Aldridge report and the statement of claim. It is not necessary to require the parties to go to the trouble and expense of preparing affidavits when counsel can simply provide the court with a copy of the report in question and the pleadings.

[13] In my view, requiring affidavit evidence would not be consistent with the object of securing the inexpensive determination of every proceeding on its merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns as a report he intends to rely on at trial as an expert report. As I have said, that report, together with the statement of claim, form the basis of Mr. Brun’s submissions. As a result, Mr. Cahan’s application can proceed as an application before the trial management judge.

New Rules Caselaw Update: More on Contested Applications at TMC's and CPC's


Late last year reasons for judgment were released by the BC Supreme Court finding that Trial Management Conferences and Case Planning Conferences “are not generally the forum to determine contested applications.” . Reasons for judgement were released this week by Mr. Justice Smith taking a less restrictive view of this issue.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision.  As trial neared the Plaintiff brought an application for an adjournment and this was granted in order to give the Plaintiff time to gather appropriate medico-legal evidence.  The Court was specifically asked whether it was permissible for contested applications to be heard at TMC’s.  Mr. Justice Smith held that such practice was permitted under the Rules.  The Court provided the following reasons:

[1] At a Trial Management Conference (TMC) on March 31, 2011, I made an order adjourning the trial in this matter, which had been set for May, 2, 2010.  I indicated that I would provide written reasons because the application raised a procedural question about the circumstances under which a judge at a TMC may hear and rule upon a contested adjournment application.

[2] The TMC was created by the new Supreme Court Civil Rules, B.C. Reg. 168/2009 that came into effect on July 1, 2010.  Rule 12-2 (9) sets out a broad range of orders that can be made by the presiding judge at a TMC “whether or not on the application of a party.”  These include, at subparagraph (l), an order adjourning the trial.  However, Rule 12-2 (11) prohibits a TMC judge from hearing an application for which affidavit evidence is required…

[7] I do not understand Vernon to be suggesting that a judge at a TMC can never order an adjournment if one party objects.  No such restriction appears in Rule 12-2.  The Rule prohibits hearing applications that require affidavit evidence.  It is for the judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.

[8] The orders permitted by Rule 12-2 (9) are, broadly speaking, procedural in that they deal with the conduct of the trial, including how certain evidence is to be presented, the length of the trial and, in subparagraph (q), “any other matter that may assist in making the trial more efficient.”

[9] Rule 12-2 (3) requires the parties to file trial briefs in Form 41 identifying the issues in dispute (which, by that stage, may not be all of the issues raised in the pleadings), listing the witnesses, including experts, to be called and estimating the time necessary for the evidence of each witness.  The trial brief is an unsworn statement of counsel or the self-represented party.  The Rule clearly contemplates that the judge will make orders based on the information contained in the trial briefs, as supplemented by what is said at the TMC.  That is the only basis on which the orders permitted by the Rule could be made.

[10] In some cases where an adjournment, or any other order is sought, a judge may decide that supporting information is not adequate.  That was the situation in Vernon, where Goepel J. was presented with an affidavit of the plaintiff setting out the prejudice that would flow from an adjournment.  That evidence had to be weighed against any evidence of prejudice to the defendant if the adjournment was not granted.  Once the plaintiff’s affidavit was found to be relevant, evidence in proper form was required from the defendant and counsel’s statements, standing alone, were not acceptable.

[11] However, there are situations where the need for an adjournment can be clearly assessed on the basis of information provided at the TMC and affidavit evidence would be of no assistance.  For example, a judge may be able to determine simply from the trial briefs that the trial cannot possibly be completed in anything close to the estimated time, or that the number of pre-trial matters still to be dealt with shows that the case is not ready for trial.  If the judge could not order an adjournment in those circumstances, a large part of Rule 12-2’s purpose would be defeated….

[18] In summary, the fact that the adjournment application was contested would not, in itself, have prevented me from hearing and deciding it at the TMC.  In the circumstances, affidavit evidence was not necessary. I had jurisdiction to consider the adjournment application on the basis of information in the trial briefs and the statements of counsel at the TMC and I would have made the same decision had the matter proceeded on that basis.

Joint Experts and the New Rules of Court


Can the BC Supreme Court order that parties use a joint expert in a personal injury trial against the wishes of one of the parties?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this question.
In today’s case (Benedetti v. Breker) the Plaintiff was involved in a 2005 collision.  He was 17 at the time and allegedly sustained a brain injury with psychiatric consequences.  The Plaintiff brought an application asking that the Court order that Dr. O’Shaugnessy be appointed as a joint expert in the lawsuit.  The Defendant objected to having a joint expert.  Master Baker dismissed the motion and in doing so found that the Rules of Court do not permit a joint expert to be appointed over the objection of a party unless its done at a Case Planning Conference.  The Court provided the following reasons:

[11] Jointly appointed experts are not new to litigation in British Columbia.  In the family law context section 15 of the Family Relations Act has, for over 30 years, provided for the appointment of experts to investigate and prepare custody and access reports.  Realty appraisers are also often jointly appointed and instructed in family proceedings.  It is not all that unusual to encounter jointly-instructed experts in construction disputes.  But the new Rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite the wider application of that process.

[12] Having said that, I agree with Mr. Nugent that this application does not follow the correct procedure for such an appointment.  He is correct in his analysis and that the only provision in the new Rules for the appointment of a joint expert over the wishes of one or both of the parties is in Rule 5-3(1)(k)(i), authorizing the presiding Judge or Master to order

that the expert evidence on any one or more issues be given by one jointly-instructed expert

Rule 11-3, he correctly argues, only permits the court to direct who that expert will be, or other terms ancillary to the appointment.  Rule 11-3 assumes that either the parties have agreed to the concept of a joint expert, or that the court has already ordered one in a CPC.  Neither of those assumptions apply in this case.

[13] It is not for me to theorize the reasons behind Rule 11-3’s current form, or why the only provision for the court, of its own volition, to appoint a joint expert is found in the CPC rule.  Suffice it to say and conclude that the Attorney General’s Rules Revision Committee’s purpose and the legislative intent was to separate the aspects of the appointment accordingly and to leave the court appointment process in the less formal CPC procedure.

[14] Even if the authority did lie in Rule 11-3, however, I agree further with Mr. Nugent that it would not be an appropriate order in this case.  This jurisdiction is blessed with a choice of numerous medical legal experts who could function as a joint expert in this matter.  By no means is Dr. O’Shaughnessy the only suitable choice as joint expert.  To appoint him, however, is to deprive the defence of a significant or potentially significant trial stratagem.  Wilson, C.J.S.C. in Milburn et al v. Phillips long ago described the purpose of an IME: “…to put the parties on a basis of equality” or, as it is commonly offered in chambers, to level the playing field.  The plaintiff has received treatment from at least two psychiatrists and has seen a neuropsychologist (par. 3, above).  The former were, to be sure, treating physicians, but it is not clear whether the latter was for treatment or for medical-legal consultation.  Given these facts, the defence should not be deprived of unilateral access to the one psychiatric expert that it chose and notified some 15 months before this application.

[15] The accompanying argument also has merit: should Dr. O’Shaughnessy’s conclusions not assist the defence, counsel can instruct him to not prepare a report.  In such an instance Dr. O’Shaughnessy’s objective observations, test results, or the like may well be discoverable but he would not be obliged to give or disclose his opinion to the plaintiff.  This is an important tool in the defence toolkit and should not be casually ignored.

[16] Finally, while proportionality is a laudable goal and should factor into all decisions under the Rules, in this case I doubt its applicability.  With five medical reports (privileged to date, recall) with the plaintiff, it seems unlikely that proportionality will be served by directing that a sixth, that of Dr. O’Shaughnessy, be a joint report.

[17] For these reasons the application is dismissed.

Case Planning Conferences and Transcripts of Proceedings: Uncontested Applications


As recently discussed, one of the changes in the new BC Supreme Court Civil Rules is the introduction of Case Planning Conferences (CPC’s).   Rule 5-2(7) states that “proceedings at a case planning conference must be recorded, but no part of that recording may be made available to or used by any person without court order“.  The first reasons for judgement  that I’m aware of addressing the issue of a court’s discretion to order a transcript of proceedings following a CPC were released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Shen v. Klassen) the plaintiff was involved in a motor vehicle collision and sued for damages.  In the course of the lawsuit a CPC was held.  The Defendant wrote the Court requesting a copy of a transcript following the CPC.  The plaintiff took no position with this request.  Despite this the Master refused to make a transcript available stating that “I see no basis upon which to accede to the request“.
The Defendant appealed.  The Plaintiff again took no position.  Madam Justice Beames allowed the appeal and permitted the Defendant to obtain a copy of the CPC transcript stating that “there is no compelling reason, in my view, for the court to refuse to order a transcript of a CPC where one party seeks the transcript and the other party does not object“.
The Court was invited by the Defendant to set out guidelines to be applied in future cases addressing the circumstances when CPC transcripts should be released.  Madam Justice Beames refused to do so noting that it would be inappropriate to do so when the Court only heard one party’s submissions on this issue.
I will continue to follow the Judicial development of this rule and write about relevant cases as they come to my attention.  If anyone is familiar with other cases addressing the Court’s discretion to order the release of CPC transcripts I invite you to bring them to my attention.

New Rules of Court Update: Contested Applications At CPC's and TMC's


(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.

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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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