BCSC Civil Rule 7 – Page 9

Exclusion of Witnesses Results in New Trial in Chronic Pain Case

Written by admin on August 25, 2011. Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Civil Procedure, ICBC Privacy Issues. 46 Comments on Exclusion of Witnesses Results in New Trial in Chronic Pain Case

This week the BC Court of Appeal released reasons for judgement ordering a new trial following a chronic pain case which resulted in a $525,000 damage assessment.
In this week’s case (Houston v. Kine) the Plaintiff was injured in a 2006 collision. She allegedly suffered from PTSD and a chronic pain disorder as a result of the crash. The matter went to trial although did not conclude in the time initially allotted.
There was a 5 month gap before the trial recommenced. During this break ICBC undertook surveillance of the Plaintiff over two periods of time. The Defence lawyers, however, failed to disclose this evidence in compliance with the Rules of Court. As a result the trial judge refused to let the evidence in. The Court went further, however, and held that the witnesses who made the videos could not testify as to their observations of the Plaintiff as doing so would undermine the decision to exclude the video evidence.
The Defendants appealed arguing that the witnesses were wrongly excluded. The BC Court of Appeal agreed and found that while “the defendants’ choice at trial to withhold the existence of the videotapes….was inappropriate” and that this evidence was rightly excluded it was improper to exclude the witnesses themselves to testify. In ordering a new trial the BC Court of Appeal provided the following reasons:

[31] The obvious difficulty with the viva voce evidence was that the observers were unknown to the defendants prior to the hiatus in the trial. The earliest that they could have been identified was in November of 2009. By then, the plaintiff’s preparation for trial was all but over. To constrain the defendants’ ability to react to the plaintiff’s evidence to “prevent surprise or ambush” in my view unfairly restricted their ability to have the proceeding determined on its merits. As the trial judge accepted that there was no restriction on calling lay witnesses, she erred in imposing that restriction respecting witnesses who could comment on the plaintiff’s activities during the hiatus in the trial.

[32] The trial judge’s second reason for refusing to allow the observation witnesses to testify was that:

It would be inconsistent with my previous order and with the objects of the Rules, expressed in R. 1(5), “to secure the just, speedy and inexpensive determination of every proceeding on its merits,” to allow the defendants to, in effect, ambush the plaintiff with this evidence, which has been disclosed only recently.

[33] In my view the trial judge here misapplied Rule 1(5), focussing on speed in the completion of the proceedings at the expense of their merits. The Rule and the third factor in Stoneemphasize the importance of the determination of a proceeding on its merits. In order to determine a proceeding on its merits, the admissible evidence that is tendered by a party and is relevant to matters in issue should be considered.

[34] In addition, given that the original trial estimate was exceeded by the plaintiff’s case, necessitating the adjournment of the trial that caused the hiatus that brought about the acquisition of new evidence by the defendants, I am unable to accept that the delay resulting from the proposed evidence should have been treated any differently from the delay that was occasioned by the initial inadequate trial time estimate. The failure to do so prevented the determination of these proceedings on their merits. I conclude that the trial judge erred in law in refusing to permit the witnesses to give viva voce evidence at the trial…

[36] Here, the credibility of the plaintiff was a critical factor in the trial judge’s assessment of quantum, and the evidence of the observers was intended to directly address the plaintiff’s credibility. In my view, the refusal of the trial judge to permit the defendants to adduce evidence to challenge the plaintiff’s physical abilities at the date of the trial was unfair, and given the importance of this evidence to the ultimate award of damages for future diminished earning capacity and future cost of care, I see no alternative but to order a new trial on damages. I would thus allow the appeal and order a new trial.

Defendant Denied Second Medical Exam Despite Potential "Concerns" Of First Expert's Opinion

Written by admin on August 22, 2011. Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized.

(Update: The below decision was upheld on Appeal by Mr. Justice Smith on September 29, 2011)
Although Rule 7-6(2) of the BC Supreme Court Civil Rules permits multiple court ordered medical examinations, there is a general prohibition of multiple exams to comment on the same topic. Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this in the context of a psychiatric condition which developed following a motor vehicle collision.
In this week’s case (De Sousa v. Bradaric and Borthwick) the Plaintiff was injured in a 2003 collision which allegedly caused physical and psychiatric consequences. In the course of the lawsuit the Defendants had the Plaintiff assessed by a psychiatrist of their choosing. This psychiatrist (Dr. Davis) concluded that there was “no psychosis“.
Shortly after this the Plaintiff was admitted in hospital on multiple occasions. She was ultimately diagnosed with “chronic paranoid schizophrenia” by her treating physicians. These records were shared with Dr. Davis but despite the diagnosis from treating specialists he “rigidly and categorically rejected any diagnosis of a psychotic conditions“.
In the face of this clear diagnosis from the treating physicians a second Defence Medical Exam was sought, this time with a different psychiatrist. The Court rejected the application despite potential “concerns….with the quality or reliability” of Dr. Davis’ opinion. In rejecting the application Master Baker provided the following helpful reasons:

[13] I am not satisfied at all that in these circumstances, with these facts and history, that a second IME is justified. It is easily as consistent in my mind that the defence now disagrees or is concerned about issues with Dr. Davis’ position and report. It is easily consistent, in my view, that the application aims to mediate or improve upon Dr. Davis’ opinions.

[14] Yes, Mr. McIvor is absolutely correct that the psychosis, if any, was at a fairly nascent stage in 2007 when Dr. Davis saw her and that it has apparently, if one takes the evidence of the plaintiff, become full-blown. Well, so be it. In my respectful view, Dr. Davis is a psychiatrist. He is an expert in psychiatric matters. He has been consulted on, I am told, many occasions. That is not denied. I would expect him to be alive to the issue. He certainly inquired of Ms. De Sousa and very soon after was advised of the psychotic overlay or potential for it and has absolutely rejected that.

[15] In all the circumstances, I just cannot see a basis for the second opinion. It is a multi-stage test, of course. There are aspects of this both counsel have properly put before the court, starting with as Mr. McIvor has pointed out the Chief Justice in Wildemann (1990), 50 B.C.L.R. (2d) 244 (C.A.). It must be an exceptional case that justifies the second IME or one that is required to place the parties on equal footing. I cannot see that in this particular case. What is, I think, concerning the defence, I infer, is concerns they have with the quality or reliability of a report obtained in this specific area of expertise.

[16] The court should be concerned according to McKay v. Passmore, 2005 BCSC 570, that the matter is something that could not reasonably be seen or anticipated or dealt with at the time. Well, again, I do not see that that applies in this case. There was a previous committal for psychotic reasons. Counsel called and advised that she had been to the hospital, possibly not for psychotic reasons, possibly as I said earlier for cognitive reasons; possibly he did not have in hand the medical records. He probably did not. It sounds to me like it was on an emergency basis, but surely that should have given rise to real concerns on the part of any inquiring professional such as Dr. Davis.

[17] The passage of time alone does not justify a second IME. That is true. However, that may be qualified, I suppose, when the passage of time allows for the development of a whole new area of concern or symptomology. Certainly, as I have said already a couple of times, her psychosis has really developed and become much more obvious, apparently. However, I do not think this aspect applies because it should have been evident to a reasonable inquiry at the time that there was a real issue about this…

[21] Yes, this may be developing into a major claim, but that does not change all of the other considerations that I have applied and taken from the cases, all of which lead me to conclude that the application should be dismissed, and it is.

More on Part 7 Medical Exams Barring Tort Exams

Written by admin on July 21, 2011. Posted in BCSC Civil Rule 7, independent medical exams.

As previously discussed, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways. The first is when an insured applies for first party no-fault benefits. Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances. The second is under Rule 7-6(1) of the BC Supreme Court rules which allows the court to order an independent exam to “level the playing field” in an injury lawsuit.
Two sets of reasons for judgement were recently brought to my attention from the BC Supreme Court, Campbell River Registry, discussing when a previous Part 7 Exam will prevent ICBC from obtaining a new expert under the Rules of Court.
In the first case (Robinson v. Zerr) the Plaintiff was injured in a motor vehicle collision. In the course of dealing with ICBC for his Part 7 Benefits the Plaintiff attended a medical appointment arranged by ICBC with an orthopaedic surgeon. In the course of the tort lawsuit ICBC attempted to get an opinion from a second orthopaedic surgeon. The Plaintiff opposed this. ICBC brought an application to compel the second exam but this was dismissed with the Court finding that the first report strayed beyond what was required for a Part 7 exam. In dismissing the Application Master McCallum provided the following reasons:
[8] The authorities are clear that the Part 7 report can be treated, as it was in Robertson v. Grist, as a report in the tort action if it is shown that it effectively covered all of that ground, as I understand it. It is clear from Dr. Dommisse’s that it does cover all of what one may expect in a report. Dr. Dommisse did not have access to the pre-accident clinical records. However, it is clear he knew of the plaintiff’s history because he describes past treatments and past history…
[10] Dr. Dommisse went through the examination and gave his opinion. His opinion is not qualified in any way. He does not suggest that there is more information he needs. He makes no recommendaiton for treatment. There is nothing to suggest that, if he had more information or that he wished more information before he could make the determinations he did.
[11] The report, in my view, is the same of sufficiently similar to the report in Robertson v. Grist and obtained in circumstances that persuade me that this report is indeed the opportunity for the level playing field that the authorities call for. The defendant has had the opportunity to have the plaintiff examined by an examiner of his choosing. Although the adjuster references Part 7 claim and the disability benefits, Dr. Dommisse does not, in my view, treat the report as limited in any way and gives his opinion on every aspect of the claim…
[15] In those circumstances the defendant’s application is dismissed.
In the second case (Lamontage v. Adams) a similar result was reached with a Court finding that a subsequent exam should be with the Part 7 physician as that examiner covered ground relevant in the tort claim.
The above cases are unreported but, as always, I’m happy to provide a copy of the reasons to anyone who contacts me and requests these.

More on Court Ordered Medical Exams and Travel

Written by admin on July 18, 2011. Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 47 Comments on More on Court Ordered Medical Exams and Travel

Further to my previous posts on this topic (which you can find here and here) further reasons for judgement were released by the BC Supreme Court, Vancouver Registry, addressing defence medical exams and the issue of travel.
In today’s case (Breberin v. Santos) the Plaintiff was injured in a motor vehicle accident. The Defendants wished to send her for a medical exam. The Plaintiff lived in Edmonton and argued that the exam should take place there. The Defendants applied for a Court order to compel an exam in Vancouver. In opposing the application the Plaintiff produced evidence from her doctor stating that “she is unable to travel….at the present time or in the forseeable future“.
Mr. Justice Willcock was not satisfied with this medical evidence and ordered that the exam take place with the Defendant’s chosen expert in Vancouver. In doing so the Court provided the following reasons:

[5] The argument made by the parties is, first, for the defendants, that the defendants are entitled pursuant to Rule 7-6 to obtain an order requiring the plaintiff to attend at a medical examination and that the test to be addressed by the court in determining where and when the examination should take place is fully and accurately described by Master Bouck in the decision of Parsons v. Mears, 2011 BCSC 397. In that case, the court says that the following principles are applicable to the question whether a plaintiff should be examined within British Columbia:

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 …

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 …

c. Convenience to the plaintiff is but one of several factors for the court to consider in exercising its discretion under Rule 7-6: …

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 …

[12] In my view, the logic of Master Bouck set out in the Parsons case is applicable both in relation to independent medical examinations within and outside British Columbia. I am of the view that the plaintiff’s convenience should be considered in determining where the independent medical examination should take place. I am also of the view, however, that the onus should fall upon the plaintiff to show that there is a reason to depart from the general rule that the defendants are entitled to choose the expert who should conduct the independent medical examination on their behalf. Here, the plaintiff should be required to show some justification for requiring that the independent medical examination should take place in Edmonton.

[13] As I noted when I referred to the affidavit filed by the plaintiff in response to the application, there is very little evidence with respect to the nature of the medical problem that will prevent the plaintiff from attending at an independent medical examination. The independent medical examination is scheduled in the relatively distant future, on July 8, 2011. There is, in my view, sufficient time for the plaintiff to prepare and make careful arrangements to attend at that examination in July. This is not a case where the independent examination is set late in the day or in circumstances that prevent the plaintiff from making appropriate arrangements so as to make it convenient for her to attend.

[14] I am not satisfied on the evidence that the plaintiff has established that there is any reason that justifies an order that she should be examined in Edmonton as opposed to Vancouver. There is, on the other hand, considerable advantage to the parties in having the independent medical examination being conducted in Vancouver in that the expert will be available to attend at trial if required to do so and readily available for cross-examination. Because the case is set for trial in Vancouver, I am of the view that it is in the interests of justice in this case to order that the independent medical examination take place here. I am not satisfied on the evidence there is any reason to depart from the Rule that the defendant should be entitled to choose an appropriate expert to conduct the examination so as to put the parties on an equal footing.

More Judicial Authority of "Responsive" Independent Medical Exams

Written by admin on July 11, 2011. Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams. 45 Comments on More Judicial Authority of "Responsive" Independent Medical Exams

One of the New Rules which has received more attention than most is Rule 11-6(4) which deals with responsive reports. The issue of whether the Court could order a Plaintiff to undergo a physical exam for a responsive report has been considered a good half dozen times. In short the authorities have held that such an order is possible but the Courts have been conservative in making these orders to date. Further reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this topic.
In this week’s case (Mahil v. Price) the Plaintiff was injured in a 2007 motor vehicle collision. The Defendants did not order an independent medical report in the timelines allowed by Rule 11-6(3) and brought a motion for an exam less than 84 days before trial. They argued that they only wished to obtain a ‘responsive’ report and that the report would comply with Rule 11-6(4). Mr. Justice Voith held that such an appointment was permitted and allowed the order. In doing so the Court provided the following reasons:

[21] Rule 7-6(1), formerly Rule 30, allows for the conduct of an independent medical examination. The object of Rule 30 was succinctly described by Finch J.A., as he then was, in Stainer v. ICBC, 2001 BCCA 133 at para. 8:

…the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence. …

[22] The object of placing the parties on an equal footing is, however, only achieved in real terms if the parties also adhere to those rules which govern the timely exchange of both initial expert reports and responsive expert reports.

[23] The important relationship of what was Rule 30 and what is now Rule 7-6(1) and those Rules which pertain to the time limits for the exchange of expert reports has been recognized in other decisions. In Wright v. Brauer, 2010 BCSC 1282, Savage J. said at para. 9:

In the context of an action seeking compensation for personal injuries, the parties are on equal footing with respect to medical evidence if they can independently obtain medical evidence and if such evidence is served in accordance with the Rules.

[24] In the case of Mackichan v. June and Takeshi, 2004 BCSC 1441, Master Groves, as he then was, said at para. 11:

… It is not simply a question of putting the parties on a level playing field at this stage, it is a question of really balancing the prejudice which will result to the defendants in not having a report and the prejudice that will result to the plaintiff in having a report prepared late which would no doubt, I expect, cause an adjournment of the trial.

[25] If the defendants have Dr. Gropper prepare a properly responsive report, and if that report is delivered in accordance with the Rules, the interests of both parties are concurrently advanced and safeguarded.

[26] I have, based on a request I made, been advised by counsel for the defendants that Dr. Gropper would be able to deliver his report in advance of the 42 days provided for in Rule 11-6(4).

[27] Notwithstanding some misgivings about some of the issues advanced by the defendants, I do not believe that it would be either prudent or appropriate for me to pre-determine that the specific concerns raised by the defendants will not, in fact, be properly responsive to the Reports.

[28] I have, however, earlier in these reasons, identified with some precision the very narrow issues that the defendants assert they wish to respond to in the Reports. These reasons should provide some safeguard against Dr. Gropper’s report extending or straying beyond its permitted ambit, whether inadvertently or otherwise. I note, as did Saunders J., as she then was, in Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 at para. 7 (S.C.), that truly responsive evidence:

… does not permit fresh evidence to masquerade as an answer to the other side’s report.

[29] I am therefore prepared to grant the defendants’ application. Costs are to be in the cause.

Digital Vacation Photos and Metadata Production Ordered in ICBC Claim

Written by admin on July 5, 2011. Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized. 2 Comments on Digital Vacation Photos and Metadata Production Ordered in ICBC Claim

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, ordering production of a Plaintiff’s vacation photos in an ICBC injury lawsuit.
In today’s claim (Abougoush v. Sauve) the Plaintiff was injured in a 2007 motor vehicle collision. She alleged that her injuries disabled her for a period following this collision. During this period she travelled to Las Vegas, Palm Springs and the Caribbean. Photos were taken during these trips.
ICBC asked for the photos to be produced. The Plaintiff opposed arguing that any probative value in the photos was outweighed by Privacy concerns. Mr. Justice Rogers reviewed the photos and ultimately ordered them disclosed. The Court noted some difficulty reconciling the activities depicted in the photos with the “Plaintiff’s perception of what is a physical activity” based on her affidavit evidence. In ordering production of the digital photos and metadata Mr. Justice Rogers provided the following reasons:

[7] The photographs in question depict the plaintiff in various indoor and outdoor tropical settings. The plaintiff is depicted engaging in various activities including swimming, walking on a beach, going on a catamaran power boat, and visiting the Grand Canyon. The photographs clearly establish that the plaintiff did not spend the majority of her time curled up in her parent’s motorhome or resting poolside in a chaise lounge.

[8] I have referred to the pleadings, of course, in order to determine what matters are in question, but I have also referred to the plaintiff’s Affidavit #1, particularly the extracts set out above. The pleadings establish that the nature and extent of the plaintiff’s physical injuries, their effect on her enjoyment of life and their effect on her ability to participate in physical activity are matters in question. The photographs, when they are compared to the plaintiff’s affidavit evidence, are clearly relevant to the plaintiff’s perception of what is a physical activity. They are also relevant to the plaintiff’s tolerance for physical activity over a several week period.

[9] The photographs do not show the plaintiff in embarrassing or socially unacceptable situations. There is nothing about the photographs that would prevent their owner from, for example, posting them on a social networking site such as Facebook. I do not consider that the plaintiff’s demeanour or comportment in any of the photographs in the binder is such that they must be withheld from the defendants in order to preserve her privacy.

[10] In my opinion, the plaintiff’s pleadings and her affidavit evidence make the entire photographic record of her trips to Las Vegas and Palm Springs, and to the Caribbean, relevant to matters in question in this suit. All of the photographs in the binder provided to me must, therefore, be produced to the defendants.

[11] From what I can see of the camera that the plaintiff used to take many of these photographs (the camera can be seen in the reflection off the plaintiff’s sunglasses in some of her self-portraits), I believe it was a digital device. Digital cameras typically record the time and date when the photograph was taken. Some cameras capture the camera’s GPS co-ordinates as well. These data are known as metadata. These data are relevant to a matter in issue in this lawsuit because they may provide information from which the camera user’s tolerance for physical activity from day to day or over several days may be inferred. More particularly, the metadata may be relevant to the plaintiff’s ability to, for example, be active throughout a given day and then go walking on the beach in the evening, or it may be relevant to the plaintiff’s ability to spend an evening at a nightclub until some given hour, and then tolerate swimming the next morning. For that reason, the metadata associated with these photographs must also be produced to the defendants. That discovery may be accomplished by providing the defendants with digital copies of the photographs with the metadata preserved intact in those copies.

Counselling Record Production Request Denied as Irrelevant and Privileged

Written by admin on June 30, 2011. Posted in BCSC Civil Rule 7. 49 Comments on Counselling Record Production Request Denied as Irrelevant and Privileged

Concise reasons for judgement were recently released discussing the scope of document production limits under the New Rules of Court. In today’s case (RCL v. SCF) the Plaintiff was seeking damages following a motor vehicle collision. He had a history of emotional difficulties stemming in part from childhood abuse. He received counselling regarding this from the Elizabeth Fry Society. The Defendant requested a Court Order for production of these records.
Master Young refused the application as going beyond the narrower document production test under the New Rules of Court and further held that even if the documents were relevant they were privileged under the Wigmore criteria. The Court provided the following reasons:

[1] … The application is being brought under our new Rule 7-1(1). The relevancy test in the Supreme Court Rules has now narrowed to one of direct relevance, to use the words of the section, “to prove or disprove a material fact”, and it is no longer a chain of inquiry test related to any matter in question. I am not satisfied that these records will assist in proving any material fact.

[2] The defendant already knows that the plaintiff was abused as a child; that this event caused him emotional pain; that he attempted suicide; that he sought help from the Elizabeth Fry Society; that he missed work prior to the motor vehicle accident; and that he suffers from borderline personality disorder and depression. I also note a record that his brother passed away shortly before this accident. The defendant has obtained volumes of clinical records. I do not see how the detail of the counselling at Elizabeth Fry or the details of the abuse are going to add anything to the information they already have. It is clearly a request based on a chain of inquiry that there might be something relevant in those records.

[3] Everyone agrees that the Wigmore criteria that is set out in the Slavutych v. Baker decision is the relevant test to determine if the records are privileged, and I am not going to repeat those four criteria, but criteria 1 to 3 were conceded to exist, and there was some debate in submissions about whether criteria 4 has been met, and that says that (as read in):

The injury that would inure to the relationship by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of the litigation.

[4] I agree with Mr. Williams that the case of M. v. Martinson is directly on point. Paragraph 4 of the Wigmore criteria has been interpreted in the broad sense as one of a public policy issue. Would the public interest and the proper administration of justice outweigh in importance any public interest that may be protected by upholding the claim for privilege? As Master Joyce (as he then was) said at para. 18 (as read in):

I find there is great public interest in encouraging victims of abuse to seek counselling and to be assured of the confidentiality of that communication. The public interest is served if that confidentiality is fostered to the greatest possible degree.

[5] What of the interests of justice? Is the central issue in this case before me today in this lawsuit the same as might be contained in those records? I think not. There have already been several other sources outlining this plaintiff’s prior psychological problems. These records are at best peripherally related to the material issue. I am not convinced that in the interests of justice, I should breach that confidential relationship at all, not even to review those records myself and certainly not under this new narrow test for document production in our Rules of Court.

[6] So on that basis, I am denying the application.

Deposition Applications Under the New Rules of Court

Written by admin on June 29, 2011. Posted in BCSC Civil Rule 7, Uncategorized. 56 Comments on Deposition Applications Under the New Rules of Court

Earlier this year Mr. Justice Harris provided reasons in obiter setting out some concerns as to why parties should limit the use of deposition evidence at trial. This week, reasons for judgement were released considering a contested application for a witness to testify by way pre trial deposition. This is the first reported case I’m aware of dealing with such an application under the new Rules of Court.
In this week’s case (Seder v. ICBC) the Plaintiff was injured in a motor vehicle collision. ICBC spoke with the Plaintiff’s employer and wished to call her as a witness at trial. The employer lived in Alberta so ICBC asked for permission to conduct a pre-trial deposition and introduce that evidence at trial. The Plaintiff opposed this but was willing to accommodate the witness by allowing her to testify via video-link. ICBC did not agree to this compromise and brought an application for an order requiring the witness to attend a deposition.
Master Young dismissed ICBC’s application but did give the witness permission to testify via video-conferencing. In doing so the Court provided the following reasons:

[3] In determining whether to exercise its discretion to order an examination under subrule (1), the court must take into account:

(a) the convenience of the person sought to be examined,

(b) the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence,

(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial,

(d) the possibility and desirability of having the person testify at trial by video conferencing or other electronic means, and

(e) the expense of bringing the person to the trial.

[4] The former Rule 38 is essentially the same rule as the new Rule 7-8, with the exception that a new ground has been included at 7-8(3)(d) regarding the possibility of testifying at trial by video conferencing…

[5] In Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1830, Mr. Justice McColl discussed the purpose and intent of Rule 38 shortly after it was incorporated into the Rules. The Rule, he said, is attempting to strike a balance between the fundamental principle that witnesses should testify live before the court and the preservation of evidence which might not be available at trial because it is not always possible to get witnesses, willingly or otherwise, before the courts. His Lordship said that Rule 38 intended to provide the parties with the opportunity to preserve and present evidence when there is a possibility that a witness would not otherwise be heard and thus adversely affect one of the litigants at trial. The emphasis was on the availability of the evidence, not the convenience of counsel.

[6] The mischief to avoid in interpreting the Rule, is that trial would become a “hodge-podge of deposition evidence along with viva voce evidence in the conduct of a trial merely to convenience counsel or indeed potential witnesses” (Abermin at p. 3)…

[33] Ms. Jacob is not a central witness. She is being called to give brief evidence relating to loss of earnings. It is not proportionate to pay three days’ travel expenses to have her testify for an hour and fly home the same day. This travel expense could be avoided by permitting her to attend at the trial by video conference. She is a cooperative witness, but out of an abundance of caution the third party still intends to subpoena her. The cost of the applications cannot be avoided if the third party wants to ensure her attendance. That cost would be incurred whether she attended for a deposition or for a trial.

[34] I have to keep in mind the problems with preparing defence evidence prior to the trial without a judge presiding, as articulated by Justice Harris in Byer. It strikes me that these problems which interfere with the effectiveness and usefulness of the evidence at trial should only be ordered in exceptional circumstances where the evidence will be lost if not recorded prior to trial.

[35] In cases such as this case before me with the most unexceptional facts, the proportionate procedure would be video conferencing.

[36] I dismiss the third party’s application.

Getting to Peruvian Guano

Written by admin on June 9, 2011. Posted in BCSC Civil Rule 7, Uncategorized. 153 Comments on Getting to Peruvian Guano

Yesterday morning I was teaching as a guest instructor at PLTC (the BC Bar Exam Course) overseeing a Courtroom skills exercise. During the mock court application I asked the soon to be lawyers under what circumstances the Pervuian Guano test applied for document production. Little did I know my question was being answered just across town by Master Bouck who released reasons for judgement addressing this topic at length.
As previously discussed, the New BC Supreme Court Rules replaced the Peruvian Guano test for document production with the narrower test of documents that “prove or disprove a material fact”. However, the rules allow for the Peruvian Guano test to kick in through the second tier of document production set out in Rules 7-1(11),(12) and (13). Master Bouck addressed exactly what’s necessary to get to the Peruvian Guano stage.
In yesterday’s case (Przybysz v. Crowe) the Plaintiff was injured in a motor vehicle collision. ICBC’s lawyer brought an application for the production of various records. The application was largely unsuccessful however before dismissing it the Court provided the following useful feedback about the requirements necessary to get to the Peruvian Guano stage of document disclosure:

[27] …this application is, in fact, brought pursuant to Rules 7-1(11), (12) and (13). Those Rules contemplate a broader scope of document disclosure than what is required under Rule 7-1(1)(a) Indeed, the two tier process of disclosure (if that label is apt), reflects the SSCR’s objective of proportionality. In order to meet that objective, the party at the first instance must put some thought into what documents falls within the definition of Rule 7-1(1)(a)(i) but is not obliged to make an exhaustive list of documents which in turn assists in the “train of inquiry” promoted in Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 at pp. 62-63(Q.A.).

[28] Only after a demand is made under Rule 7-1(11) for documents that relate to any or all matters in question in the action and the demand for productions is resisted can a court order production under Rule 7-1(14). It should be noted that in this case, the demand (and indeed order sought) is for production of additional documents, not simply a listing of such documents: seeRules 7-1(1) (d), (e) and (f).

[29] The court retains the discretion under Rule 7-1(14) to order that the party not produce the requested list or documents. Again, the court must look to the objectives of the SCCR in exercising this discretion.

[30] As to the form and substance of the request, it has been suggested by Master Baker that:

… there is a higher duty on a party requesting documents under … Rule 7-1(11) … they must satisfy either the party being demanded or the court … with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed” …

Anderson v. Kauhane and Roome (unreported, February 22, 2011, Vancouver Registry No. M103201) at para. 4

[31] A similar higher duty or burden rests with the party rejecting the request under Rule 7-1(12): see Conduct of Civil Litigation in B.C (2^nd edition), Fraser, Horn & Griffin @ p. 17-7. In my view, the burden is not met by stating that documents will not be produced simply because of the introduction of the SCCR.

[32] The objective of proportionality might also influence the timing of requests for broader document disclosure. The court has observed in More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, that under the SCCR:

… the duty to answer questions on discovery [is] apparently broader than the duty to disclose documents.

para. 7.

And further:

… if the court is to be persuaded that the broader document discovery made possible by rule 7-1(14) is appropriate in a particular case, some evidence of the existence and potential relevance of those additional documents will be required. The examination for discovery is the most likely source of such evidence.

para. 8.

[33] Nevertheless, neither the court nor the SCCR require that an examination for discovery precede an application under Rules 7-1(13) and (14). Depending on the case, proportionality and the existing evidence might support pre-examination document disclosure so that the examination can be conducted in an efficient and effective manner….

[40] It is suggested by the learned authors of Conduct of Civil Litigation in B.C. that authorities decided under former Rule 26(11) may be applicable to an application for broader disclosure of documents under Rules 7-1(11) – (14): p. 17-7. That suggestion is not inconsistent with Master Baker’s ruling. Again, the questions for the court will be what evidence is presented and does an order for production achieve the objective of proportionality?

Master Bouck also released a second set of reasons (Baldertson v. Aspin) with this further useful feedback of the intent of Rule 7-1(11):

[29] The intent of Rule 7-1(11) is to inform the opposing party of the basis for the broader disclosure request in sufficient particularity so that there can be a reasoned answer to the request. TheRule allows the parties to engage in debate or discussion and possibly resolve the issue before embarking on an expensive chambers application. Whether this debate or discussion was had verbally in this case is not clear on the record.

[30] Nor does it appear that any written request was made to the plaintiff to list documents relating to the 2001 motor vehicle accident. Again, the Rules appear to have been ignored as a matter of expediency.

[31] Nevertheless, the plaintiff did not seek an adjournment of the application so that the process under Rules 7-1(10), (11) and (12) could be followed. The parties proceeded on the basis that the plaintiff declined the defence’s requests for additional document disclosure and/or the listing of those additional documents. In this particular case, the objectives of the SCCR are met by dealing with the merits of the application rather than rejecting the application on procedural grounds.