BCSC Civil Rule 7 – Page 10

More on the Scope of the Implied Undertaking of Confidentiality

Written by admin on May 2, 2011. Posted in BCSC Civil Rule 7, Uncategorized. 65 Comments on More on the Scope of the Implied Undertaking of Confidentiality

An important and developing area of law in BC relates to the implied undertaking of confidentiality. When a lawsuit for damages is brought in the BC Supreme Court, the parties are required to make disclosure of certain relevant documents even if such disclosure is harmful to their interests.
In order to strike a balance between fulsome disclosure and privacy rights, the Courts have developed a rule known as the “implied undertaking of confidentiality” which prohibits a party who receives this forced disclosure from making use of the documents/information outside of the lawsuit without consent of the other parties or a court order. Reasons for judgement were recently brought to my attention (thanks to Dan Michaluk) clarifying that the implied undertaking even covers documents obtained from the Crown by a party charged with a criminal offence.
While the recent case (R. v. Basi) is a criminal case it is relevant for personal injury lawsuits. Often times a Defendant in a civil lawsuit faces criminal consequences prior to a civil action. In the course of the initial prosecution relevant documents are produced. Many of these documents are equally relevant in a subsequent civil lawsuit. In clarifying that the implied undertaking extends to these documents precluding their automatic use in subsequent civil proceedings Associate Chief Justice MacKenzie provided the following reasons:

[42] If Bennett J.’s statement left any doubt about the existence of an implied undertaking rule in British Columbia, I would affirm that an accused who receives disclosure material pursuant to the Crown’s Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding.

[43] The basis for this implied undertaking is in the sound policy reasons expressed in Wagg and Taylor and also discussed in the Martin report, all referred to above. As recognized in the civil context in Goodman v. Rossi (1995), 24 O.R. (3d) 359 (C.A.) at 367-368 referring to Lindsey v. Le Suer (1913), 29 O.L.R. 648 (C.A.), the undertaking flows as a necessary implication from the limited purpose for which the recipient has been given access to the documents.

[44] I am aware that the Court in Wagg was reluctant to lay down a rule in the criminal context that could have significant consequences in other types of litigation. However, I am satisfied this concern does not present a barrier in British Columbia in light of the jurisprudence of this Court and the recognition by our Court of Appeal that the practice in this province is not make use ofStinchcombe material for collateral purposes.

[45] As a result, I am satisfied that because the proceeding is over for which the disclosure was provided, the respondents are not entitled to make any further use of the material that remains subject to the undertaking.

I am having a difficult time reconciling this decision with the recent case of Cochrane v. Heir which indicates that Rule 7-1(1)(a)(i) would automatically force a litigant to list relevant documents in a civil suit notwithstanding the implied undertaking of confidentiality. I suspect the Court of Appeal will eventually be asked to weigh in on this issue. In the meantime parties to a lawsuit can simply take a common sense approach in agreeing to consent orders to set aside the implied undertaking of confidentiality if it applies to otherwise relevant and clearly producible documents.

Can the BC Supreme Court Order a Plaintiff to Travel Out of Province for an Independent Medical Exam?

Written by admin on April 29, 2011. Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, independent medical exams, Uncategorized. 71 Comments on Can the BC Supreme Court Order a Plaintiff to Travel Out of Province for an Independent Medical Exam?

Further to my post discussing court ordered medical exams and travel, I’ve recently had the opportunity to review whether the current Supreme Court Rules place limits on Court ordered travel for independent medical examinations. The line, it seems, is drawn at out of Province “medical practitioners“.
While I’m not aware of any cases addressing this issue under the current rules, the issue was addressed by the BC Court of Appeal under the former Rule 30(1) which reads almost identically to the current Rule 7-6(1).
In the leading case under the former rules (Hewitt v. Buell) the BC Court of Appeal held that orders for medical examinations are to be limited to BC physicians because “the phrase (medical practitioner)…as it appears in Rule 30(1) can have no meaning other than one entitled to practice in British Columbia. This is what the chambers judge concluded and in my view he was right. ”
The BC Court of Appeal went on to hold that applications for out of Province examinations with “other qualified persons” (ie- experts other than medical practitioners), can be ordered in rare circumstances.
I’ve now had the opportunity to cross reference this judgement with the new Rules of Court. It appears that the out of Province restriction for exams with “medical practitioners” remains in place. The reason being is that Rule 7-6(1) reads almost identically to the former Rule 30(1). Additionally, the current Rules of Court do not define “medical practitioner” requiring the Court to turn to Rule 1-1(2) which states that “Unless a contrary intention appears, the Interpretation Act and the interpretation section of the Supreme Court Act Apply to these Supreme Court Civil Rules“.
“Medical Practitioner” is defined at section 29 of the BC Interpretation Act as “a registrant of the College of Physicians and Surgeons of British Columbia entitled under the Health Professions Act to practice medicine and to use the title ‘medical practitioner’.”
So, if an out of Province medical exam is contested, a good place to start in opposing a defence application is to review whether the out of Province physician is a registrant of the BC College of Physicians and Surgeons.

Document Disclosure Obligations and the Implied Undertaking of Confidentiality

Written by admin on April 16, 2011. Posted in BCSC Civil Rule 7, Uncategorized. 69 Comments on Document Disclosure Obligations and the Implied Undertaking of Confidentiality

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that personal injury plaintiffs need to list and produce examination for discovery transcripts from previous claims dealing with similar injuries under Rule 7-1(1) of the Rules of Court. This decision appears to me to be at odds with previous cases addressing this issue (you can click here to access my archived posts on this topic). This issue may need to be dealt with by the Court of Appeal in order to have some certainty in this area of law.
In today’s case (Cochrane v. Heir) the Plaintiff was injured in a motor vehicle collision. She sued for damages. ICBC appointed the same lawyer to defend the claim that defended a previous lawsuit of the Plaintiffs. In the previous lawsuit ICBC’s lawyer conducted an examination for discovery of the Plaintiff. He applied for an order to set aside the ‘implied undertaking of confidentiality’ that applied to the former transcript.
Mr. Justice Harris granted the application but went further and ordered that Plaintiffs are obligated to list and produce previous discovery transcripts. Mr. Justice Harris provided the following reasons:

[5] In my view, there should be no need to relieve counsel for the defendants of his obligation under the implied undertaking. The documents are either in the possession of the plaintiff or they were in her control or possession. The plaintiff has an independent obligation to list and produce them further to her obligations under Rule 7-1(1)(a)(i) of the Civil Rules. The plaintiff cannot shield herself from her obligation to list and produce relevant documents by invoking the implied undertaking against opposing counsel who came into possession of those documents in the previous litigation: see Wilson v. McCoy, 2006 BCSC 1011.

[6] Given that the documents in issue have not yet been listed and produced by the plaintiff, I am prepared to relieve counsel for the defendants of the implied undertaking in respect of the transcripts of the examinations for discovery conducted in the previous action and the documents in issue. The implied undertaking exists to protect privacy rights and to facilitate the free flow of information in litigation by providing an assurance that information compelled to be provided in discovery is not used for collateral purposes.

[7] In Juman v. Doucette, [2008] 1 S.C.R. 1011, the following is said that governs the exercise of my discretion to relieve a party or counsel of the obligations imposed by the implied undertaking:

[35] The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted. See Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R. (2d) 260 (H.C.J.), at pp. 265-66; Crest Homes, at p. 1083; Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323 (C.A.); Harris v. Sweet, [2005] B.C.J. No. 1520 (QL), 2005 BCSC 998; Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 27 C.P.C. (4th) 252 (B.C.S.C.).

[8] The application of counsel for the defendants is granted.

Details Please: Privileged Documents and Disclosure Requirements of the New Rules of Court

Written by admin on April 13, 2011. Posted in BCSC Civil Rule 7, Uncategorized. 108 Comments on Details Please: Privileged Documents and Disclosure Requirements of the New Rules of Court

In 2009 the BC Court of Appeal released reasons for judgement addressing the details necessary when listing privileged documents. The first reasons I’m aware of addressing this issue under the New Rules of Court were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that the law remains unchanged.
In today’s case (Anderson Creek Site Developing Ltd. v. Brovender) the Plaintiff sued various defendants claiming damages for alleged unpaid accounts. The Defendants listed many privileged documents in the course of the lawsuit. The Plaintiff brought an application seeking that these be described with greater detail. Mr. Justice Verhoeven granted the application and in doing so provided the following useful summary describing the necessary details when listing a privileged document under Rule 7-1(7):

[110] Rule 7-1(7) requires that:

The nature of any document for which privilege from production is claimed must be described in a manner that, without revealing information that is privileged, will enable other parties to assess the validity of the claim of privilege.

[111] The description in the list of documents is not sufficient to respond to that requirement.

[112] The defendants argue that the description that they have given on their list of documents is not materially different than the plaintiff’s own description. That may be. That application is not before me at the moment.

[113] It is hard to know in a given case how much description is required to answer the requirement in Rule 7-1(7) without revealing privileged information. It depends on the nature of the case and the nature of the document. In this case, I would expect most documents to be transactional documents. There may be other documents as well.

[114] As a minimum, in order to have any assessment of the validity of a claim of privilege, in the circumstances of this case, it seems to me that what is required to be described are four things: first, something about the nature of the communication, that is whether it is a letter or an e-mail or memorandum or something else; second, the date upon which it was created or sent; third and fourth, the author and the recipient. With that information, it may be possible for the plaintiff to assess the claim of privilege. There may be further disclosure that is necessary at that stage; I cannot tell.

[115] So that application will be allowed to that extent. The defendants will produce a more detailed list of privileged documents disclosing that information. The plaintiff will be at liberty to reapply for a better list, in order to challenge the claim of confidentiality.

Can ICBC Deny Fault For a Crash After Previously Admitting it?

Written by admin on April 13, 2011. Posted in BCSC Civil Rule 6, BCSC Civil Rule 7, Civil Procedure, Uncategorized. 39 Comments on Can ICBC Deny Fault For a Crash After Previously Admitting it?

As with most areas of law, the short answer is ‘it depends‘. Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, canvassing this area of law.
In today’s case (Hurn v. McLellan) the Plaintiff was injured in a 2007 motor vehicle collision. It was a ‘t-bone‘ crash that occurred in a parking lot. The Plaintiff started a lawsuit and ICBC admitted the issue of fault in the Pleadings on behalf of the other motorist. As the lawsuit neared trial ICBC brought an application seeking permission to withdraw the admission of fault. Master Bouck dismissed ICBC’s request finding it would be prejudicial to the Plaintiff’s interests. In doing so the Court provided the following useful summary of the law:

[26] …There are similar and overlapping considerations for the court on these two types of applications. However, to adopt the submissions of plaintiff’s counsel, the “high bar” threshold to obtain leave to withdraw an admission must be met before the “low bar” threshold to obtain leave to amend a pleading will follow. Thus, the legal test to be met by the defence is with respect to the withdrawal of an admission.

[27] Rule 7-7(5) of the SCCR provides that:

7-7(5) A party is not entitled to withdraw

(a) an admission made in response to a notice to admit,

(b) a deemed admission under subrule (2), or

(c) an admission made in a pleading, petition or response to petition

except by consent or with leave of the court.

[28] The principles which govern an application to withdraw an admission of fact are as follows:

1. Whether there is a triable issue which, in the interests of justice, should be determined on the merits and not disposed of by an admission of fact;

2. In applying that test, all of the circumstances should be taken into account including whether:

(a) the admission has been made inadvertently, hastily or without knowledge;

(b) the fact admitted was not within the knowledge of the party making the admission

(c) the fact admitted is not true.

(d) the fact admitted is one of mixed fact and law

(e) the withdrawal of the admission would not prejudice a party

(f) there has been no delay in applying to withdraw the admission.

Hamilton v. Ahmed (1999), 28 C.P.C. (4^th) 139 (B.C.S.C.) at para. 11, as approved in Munster & Sons Developments Ltd. v. Shaw, 2005 BCCA 564.

[29] More recently, the test has been articulated by the court in 374787 B.C. Ltd. v. Great West Management Corp., 2007 BCSC 582 at para. 27:

As a general rule, the Court must consider whether in the circumstances of the case the interests of justice justify the withdrawal of the admission. The following facts, which are not exhaustive are relevant: delay, loss of a trial date, a party is responsible for an erroneous admission, inadvertence in the making of an admission and estoppel …

[30] The question of fault for the accident is one of mixed fact and law: Bedwell v. McGill, 2008 BCCA 6 at paras. 33 to 34, foll’g Housen v. Nikolaisen, [2002] S.C.J. No. 31, [2002] 2 S.C.R. 235 at para. 27 (S.C.C.), per Iacobucci and Major JJ.

[31] However, whether the admission sought to be withdrawn is one of fact, law or mixed law and fact, the same legal test applies: Nesbitt v. Miramar Mining Corp., 2000 BCSC 187 at para. 6.

[32] It is not enough to show that triable issue exists. The applicant must show that, in all of the circumstances, the interests of justice require the withdrawal of the admission: Rafter v. Paterson(November 7, 2007), Vancouver No. B924884.

[33] Moreover, even if a trial date is not imminent and the applicant gave early notice of the proposed withdrawal of the admission, delay in bringing an application for such relief might in itself be a “concern that cannot be overcome”: Sureus v. Leroux, 2010 BCSC 1344.

More on Responding Medical Reports and Physical Exams: Reconciling the Cases to Date

Written by admin on April 11, 2011. Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.

As previously discussed, a debate has arisen about if and when a Defendant is allowed to compel a Plaintiff to attend an ‘independent‘ medical exam in order to obtain a ‘responding‘ report under the BC Supreme Court Rules. Very useful reasons were released this week by the BC Supreme Court, Victoria Registry, addressing and reconciling the various authorities considering this issue to date.
In today’s case (Labrecque v. Tyler) the Plaintiff was involved in three separate collisions. He sued for damages and all three claims were set for trial at the same time. In the course of the lawsuit the Plaintiff obtained a report from his GP and from a physiatrist. The Plaintiff intended to rely on the physiatrist’s report at trial. The Defendants intended to rely on the GP’s report at trial. The Plaintiff never attended a defence medical exam in the course of the lawsuit and as the trial neared one of the Defendant’s brought an application to compel the Plaintiff to attend an examination in order to get a ‘responding’ report.
In support of the application the proposed examiner swore an affidavit explaining that he needs to ‘physically examine the plaintiff and ask him the questions a doctor would ask in order to elicit information upon which to ground my opinions‘. The application was dismissed finding that this falls short of what is required in order for a physical exam to be ordered as part of a responding report. In dismissing the application Master Bouck provided the following useful reasons reconciling the authorities addressing this issue to date:

[28] In Wright v. Bauer, the court recognized that Rule 11-6(4) “filled a lacuna” in the Rules governing civil procedure in this province: para. 12. Parties are now specifically governed by a Rule regarding delivery of responsive written expert evidence. Prior to this Rule’s enactment, the delivery of such evidence was governed by common law principles.

[29] In that case, the application for an independent medical examination was brought nearly one month before the defence would have been required to serve a responsive report.

[30] In dismissing the defendant’s application, the court found that the applicant had not met the necessary evidentiary threshold justifying an order under Rule 7-6: para. 21.

[31] The same result is found in Boudreau v. Logan and Crane v. Lee, supra.

[32] In contrast, the court in Luedecke v. Hillman was satisfied that an order should go requiring the plaintiff’s attendance at an examination…

[35] In my view, the principles enunciated in Luedecke and Wright are consistent and entirely reconcilable. The difference between the outcomes in these two cases lies in the facts.

[36] In both cases, the court concerned itself with the evidence presented to support the necessity of an examination as well as the question of prejudice.

[37] Here, the evidence from Dr. Piper as to the necessity for an examination is rather general in nature. Dr. Piper refers to the reports of both Dr. Grimwood and Dr. MacKean when in fact the responsive opinion would concern only the latter’s report. Unlike the evidence from the proposed examiner in Luedecke, Dr. Piper does not specifically identify the “medical evidence” (other than the reports themselves) that can only be addressed if a physical examination of the plaintiff occurs. Rather, Dr. Piper’s evidence suggests that an examination is necessary to respond generally to the subject matter of the plaintiff’s case and, as such, is no justification for the order sought: Luedecke at para. 52.

Multiple Defence Medical Exams: The Prohibition of "Belt and Suspenders" Applications

Written by admin on April 6, 2011. Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized.

While the Rules of Court permit Defendants to compel a Plaintiff to attend multiple medical exams in certain circumstances, there is a general prohibition in having multiple exams to address the same topic. Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, dismissing an application in these circumstances calling it a “belt and suspenders application“.
In today’s case the Plaintiff was injured in a motor vehicle collision. In the course of the claim she attended numerous ‘independent‘ medical exams with physicians selected by the Defendant. Some of these physicians opined that the Plaintiff’s difficulties were not from the collision but due to “opioid dependencies“.
The Defendant asked that the Plaintiff attend a further exam with Dr. Baker, a so -called “addictionologist“. The Plaintiff refused and an application was brought. Master Baker dismissed the application noting the general prohibition of multiple exams to bolster a previous opinion. In dismissing the application the Court provided the following helpful reasons:

[7] To get back to the point, the defence’s position is that some or much of these difficulties relate to, they say, opioid dependencies that have arisen in advance of this motor-vehicle accident. This is denied or contradicted by the report of her family physician, Dr. Singhal.

[8] Dr. Baker a specialist, in this area, not just of addiction and addiction parameters or aspects of that, but also chronic pain management, I understand. Even the brief c.v. to which I was referred was impressive. His membership in various societies, the committees he serves on, all of which impressed me.

[9] Having said all that, I cannot see that this case is in any significant way distinct from that decided by Mr. Justice Voith, to which I just referred. With greatest respect, at least two specialists for the defence have commented on, concluded, and been quite specifically direct that they regard (the Plaintiff) as having been either habituated, as one — Dr. Smith, I think, said it — or dependent, euphemistically perhaps, addicted to opioids. This has had consequences for her recovery, or her response to the accident.

[10] I agree entirely, with greatest respect, with Mr. Justice Voith and his impression of the case that he decided. I agree that there’s no doubt that Dr. Baker has greater expertise on that particular point.

[11] But as Mr. Justice Voith says, that’s not the measure of whether or not to direct an I.M.E. The phrase — I know it has a pejorative ring to it — but it was used at least a couple of times, once by me — that this is a “belt and suspenders application” by the defence. They already have expert opinion on the subject.

[12] They were met, from the plaintiff’s perspective, by opposition to Dr. Hashimoto opining on that aspect. The view, as taken by the plaintiff, that Dr. Hashimoto is not qualified to give this opinion that’s outside his expertise. They have not taken that perspective in respect of Dr. Smith.

[13] It doesn’t really matter to me whether they did or didn’t, because whether or not a second or subsequent I.M.E. should be ordered does not rely upon the plaintiff’s opinion as to the admissibility of an expert’s opinion, or in fact any other evidence. That is for the court to decide; and it is, with respect, for the defence to structure its case and its strategies.

[14] I am satisfied, on the circumstances and facts before me, that this does constitute a situation in which the defence is wishing to bolster the opinion of Dr. Smith at least, and possibly Dr. Hashimoto, with the further and yes, more focused opinion of Dr. Baker.

[15] The law in this area does not support that course. That is sufficient, in my respectful view, to decide the issue.

For the sake of convenience I should point out that the decision of Mr. Justice Voith that Master Baker referenced was Zawadzki v. Calimoso which was recently transcribed and can be found here.

Court Ordered Medical Exams and Location: Can ICBC Send You Out of Town?

Written by admin on April 1, 2011. Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 51 Comments on Court Ordered Medical Exams and Location: Can ICBC Send You Out of Town?

When ICBC requests a Plaintiff to attend an ‘independent’ medical exam they often pick physicians in the Lower Mainland for these assessments. One of the obvious reasons for this is that the Lower Mainland has the highest concentration of physicians who provide these consultations to ICBC. Is it reasonable to object to such an appointment on the basis of location? The answer is usually not and reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this area of law.
In today’s case (Parsons v. Mears) the Defendant was involved in an incident where he became trapped in an overturned tractor trailer. The Plaintiff “allegedly suffered various injuries when attempting to rescue the Defendant“. The Plaintiff sued for damages and in the course of the lawsuit the Defendant requested that the Plaintiff attend a Vancouver based medical exam. The Plaintiff agreed to the assessment but insisted it take place in Victoria. The parties could not reach agreement on this issue and an application was brought. Master Bouck ordered that the Plaintiff attend and in doing so provided the following summary of the law:

[19] The following principles are applicable to this discussion:

a. The purpose of an independent medical examination is to put the parties on a basis of equality. It is not for the plaintiff to decide which doctor can examine him or her on behalf of the defendant: Sinclair v. Underwood, 2002 BCSC 354 at para. 5;

b. Nonetheless, an independent medical examination is an examination conducted by a person appointed by the court. The convenience of the plaintiff is to be considered in appointing such a person: Willis v. Voetmann, [1997] B.C.J. No. 2492 (S.C.) at para. 5;

c. Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: Adelson v. Clint (1993), 16 C.P.C. (3d) 209 (B.C.S.C.) at para. 17; and

d. It may be appropriate for the court to consider appointing a specialist other than the proposed examiner but only where the plaintiff demonstrates, on a preponderance of evidence, sufficient grounds to justify the court in concluding that its discretion should not be exercised in favour of the appointment of the defendant’s nominee: Sinclair v. Underwood and Adelson v. Clint, supra.

[20] In terms of convenience to the plaintiff, I do not understand the authorities to say that an independent medical examination should, or even might preferably, take place at the examinee’s town or city of residence. Nor do I understand those authorities to say that all things being equal, the defence should be required to schedule an examination with a specialist practicing near the examinee’s residence. For example, the court in Willis v. Voetmann, supra, deemed it reasonable for a resident of Port McNeil to travel to Victoria or Vancouver for an examination.

[21] It is almost always an inconvenience to a plaintiff to attend an independent medical examination. An employed person might miss a day’s pay; a homemaker with young children might be required to pay for childcare. However, that inconvenience can be remedied at trial by an award of damages for this suggested loss.

[22] On a very rare occasion, the court may order that the defendant’s nominee travel to the plaintiff’s town or city of residence to conduct the independent examination or assessment. Such an order might be appropriate where the examination or assessment is requested so late in the day that travel time would unduly interfere with the plaintiff’s trial preparation. The alternative to such an order would be to deny the defendant’s entitlement to an examination altogether: White v. Gait, 2003 BCSC 2023.

[23] In this case, there is no objection to the qualifications of either Dr. Leith or the proposed evaluator at Progressive Rehabilitation. The plaintiff can obviously travel although the defendant may need to offer special accommodations for that travel.

[24] In short, convenience to the plaintiff is one of several factors for the court’s consideration on this application. It is not the predominant factor and in itself does not provide justification for denying the defendant’s entitlement to the order sought.

Justice Harris Discourages Deposition Evidence Absent "Pressing Reasons"

Written by admin on February 28, 2011. Posted in BCSC Civil Rule 12, BCSC Civil Rule 7, Uncategorized. 118 Comments on Justice Harris Discourages Deposition Evidence Absent "Pressing Reasons"

Rule 7-8(1) of the BC Supreme Court Rules allows parties to a lawsuit to, by consent, record evidence of witnesses prior to trial by way of Deposition. Deposition evidence can then be admitted at trial as authorized by Rule 12-5(40).
When evidence is taken prior to trial it is accompanied by certain shortcomings as compared to live courtroom testimony. Mr. Justice Harris discussed these at length in an Appendix to reasons for judgement released earlier this month.
In this recent case (Byer v. Mills) the Plaintiff was seriously injured in a motor vehicle collision. In the course of the lawsuit the parties agreed to record much of the evidence by way of pre-trial deposition. Ultimately the Plaintiff’s lawsuit was dismissed. Mr. Justice Harris shared some concerns about the shortcomings that can be created by deposition evidence at trial and suggested that counsel only agree to pre-trial depositions when there are ‘pressing reasons to do so‘. The Court provided the following feedback to BC litigants:

a) The majority of the defence evidence of fact was taken by deposition before trial began. This was done by consent as the Civil Rules permit. I presume it was done to convenience the witnesses, most of whom live in or near Quesnel and to save the expense of bringing witnesses to testify “live” before the court in Vancouver.

b) During the course of one deposition, I expressed some reservations about using depositions in this way. What follows are some reflections triggered by the use of this practice, and are not comments directly arising from the way counsel in the case before me conducted the depositions. They are also not complete, but merely illustrative of the kind of problems that arise by taking evidence by deposition.

c) It is well settled in our trial practice that the basic rule is that witnesses should testify live before the court. This proposition is reflected in Civil Rule12-5 (27) and in the many cases in which our courts have considered the basis on which to exercise their discretion to make an order that evidence be taken by deposition.

d) In this case, the defence evidence was taken before trial and therefore before the plaintiff had led any evidence at all. In my view, there are good reasons why in a conventional trial a plaintiff is required to lead evidence first on matters on which he or she bears the burden of proof. The defence is then required to respond to the plaintiff’s case, including leading evidence on any matters on which it carries the burden. This provides an orderly framework for the receipt of evidence by the court. It helps keep the relevance of evidence in focus.

e) Taking defence evidence first carries with it risks and potential inefficiencies. First, there is the risk that a defendant may not correctly anticipate what the plaintiff’s evidence turns out to be at trial. The defence evidence may not be properly responsive to the plaintiff’s case. Evidence may be taken that is unnecessary. Issues may not be adequately addressed in the defence case, creating the risk that a party may need to apply to have a witness who has been deposed supplement his or her evidence. It seems to me to be generally undesirable to take trial evidence out of the normal order.

f) There are further difficulties inherent in taking evidence by deposition. The evidence is not taken live and its receipt as trial evidence is not controlled by the trial judge as the evidence is being given. Objections may be made, as occurred in this case. Inevitably, the objection is made and left on the record. The witness then provides the evidence to which there is an objection, subject to a later ruling.

g) This seems to me to be unsatisfactory. It is preferable that objections be ruled on before the evidence is given for a number of reasons. First, if the objection is upheld, a witness does not spend time answering improper questions. Where several witnesses are testifying about the same matter, a ruling at the outset will limit the scope of the evidence of all the subsequent witnesses. Secondly, it is not uncommon for counsel to frame questions in an objectionable manner, even though there are ways properly to elicit the evidence counsel is seeking. It is far better for the court to have the opportunity to ensure that questions are properly framed and evidence properly received than to try to “unscramble an omelette” after the fact. This is not just a practical issue. Often the way in which evidence is elicited can affect the weight it is entitled to receive. There is a risk of substantive prejudice to the parties if the trial judge is denied the opportunity at the time it is given to ensure that evidence is properly received.

h) Finally, the trial judge has an important additional role to play in controlling the trial process. It is not uncommon for a trial judge to be called on during cross-examination, either at the request of counsel or on his or her own initiative, to control the conduct of the cross-examination. For example, it may be necessary to decide how much of a prior allegedly inconsistent statement ought properly to be put to a witness. That is a decision that should be made at the time the witness is confronted with the statement. Taking evidence by deposition necessarily deprives the trial judge of an essential judicial function. Doing so is fraught with risks to the trial process and risks substantive prejudice to the parties.

i) I appreciate the Civil Rules permit depositions to be taken by consent. In my view, the purpose of allowing this to occur by consent is to obviate the need for an order where it is clear that the circumstances exist that would lead a court to make an order. Generally, the party applying to take evidence by deposition has a burden to meet to justify departing from the general rule that evidence be given live. I will not rehearse the law on this point. But I do not think the drafters of the Civil Rules intended to encourage a practice that is inconsistent with conventional trial practice.

j) It follows from my comments above that I would discourage counsel from electing to resort to taking depositions by consent unless there are pressing reasons to do so. If there are legitimate concerns about cost and convenience, there are provisions permitting taking evidence by video conference. At least then the evidence is taken live.