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Examination For Discovery Objections Canvassed

Written by admin on . Posted in Civil Procedure. 152 Comments on Examination For Discovery Objections Canvassed

Adding to this site’s archived procedural cases dealing with examinations for discovery, reasons for judgement were released today by the BC Supreme Court, Duncan Registry, canvassing the appropriateness of several questions relating to liability.
In today’s case (Higginson v. Kish) the Plaintiff sued the Defendant for damages following a collision for which fault was disputed.  At discovery the Defendant objected to the following three questions:

Do you have any possible explanation why you wouldn’t have seen Mr. Higginson’s vehicle approaching in the left lane?

Will you agree with me that it would have been more reasonable to have approached highway speed before changing lanes?

And you were aware that prior to changing lanes, that you could expect vehicles approaching at highway speed, 80 kilometres an hour? 

In finding the first and third questions fair but the second improper Mr. Justice Johnson provided the following reasons:

[5]             It seems to me that while one of the questions, the first one, “Do you have any possible explanation why you wouldn’t have seen Mr. Higginson’s vehicle approaching in the left lane” may have been inelegantly phrased. What it was getting at or should have been getting at is, “Was there anything obscuring your ability to see to the rear, as Mr. Higginson approached?”

[6]             That does not call upon the witness to speculate, it seems to me, if the question is properly phrased, nor does it call upon the defendant to speculate. It is relevant to the issues, that is was there anything preventing the witness from seeing to his rear. That question, together with any subsidiary questions, ought to be answered.

[7]             Question 295, which was “Will you agree with me that it would have been more reasonable to have approached highway speed before changing lanes,” does not require an answer, in my view. It is not an appropriate question to ask a witness. What that really asks the witness to do is to make the judge’s decision for the judge, and that is answer questions that involve matters of law, that is whether the activities or actions of the defendant were reasonable. I will not order the witness to answer that question or anything relating to that question.

[8]             Question 310:  “And you were aware that prior to changing lanes, that you could expect vehicles approaching at highway speed, 80 kilometres an hour?”  That expectation is a perfectly legitimate and reasonable thing to explore on examinations for discovery. The knowledge of the defendant as to the speed at which traffic was or might reasonably be expected to be travelling at the time of the accident, is permissible as a topic for exploration on discovery.

[9]             I will note that, of course, at examinations for discovery, questions of relevance still are important. But those questions of relevance are finally determined at the trial, not at the discovery, and ordering the defendant to answer question 234 and 310 says nothing about whether or not those answers or any of the evidence developed is admissible at the trial.

[10]         So the defendant will attend, for no more than an hour, to answer questions 234 and 310, and any supplementary questions legitimately and properly flowing from those two questions.

Plaintiff Ordered To Produce Past Settlement Details in Potential Indivisible Injury Claim

Written by admin on . Posted in Civil Procedure. 104 Comments on Plaintiff Ordered To Produce Past Settlement Details in Potential Indivisible Injury Claim

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to disclose details of previous settlements in a personal injury prosecution.
In last week’s case (Dholliwar v. Yu) the Plaintiff was injured in three collisions.  The Plaintiff settled his first two claims.  In the third claim the Defendants requested details of the previous settlements and the Plaintiff did not produce these arguing the details were privileged.  The Court found the claims had overlapping and possibly indivisible injury claims and thus the details needed to be produced.  In reaching this decision Master Scarth reasoned as follows:

[10]         The cases set out the following principles which are applicable to this application:

a.               The public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged:Middelkamp v. Fraser Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (C.A.).

b.               A final settlement agreement is covered under the Middelkamp blanket protection for settlement communications: B.C. Children’s Hospital v. Air Products Canada Ltd., 2003 BCCA 177, confirming a general policy of non-production of all documentation relating to settlement negotiations.

c.               To establish an exception to settlement privilege, the applicant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice. Relevance alone is not sufficient to override the settlement privilege. See Middelkamp; Dos Santos v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, para. 21.

d.               An exception to settlement privilege may be necessary to prevent injustice through excessive compensation to the plaintiff: Dos Santos, para. 29, citing Pete…

[26]         It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298, but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial. 

[27]         In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach.

[28]         To the extent that disclosure at this time raises concerns with respect to the fettering of the trial judge’s determination of damages, the parties may wish to agree that, as in Gnitrow Ltd, v. Cape plc, [2000] 3 All E.R. 763, the terms of the settlements not be disclosed to the trial judge until a determination of the damages payable by the defendant has been made: at para. 21.

[29]         In the circumstances, I conclude that it is appropriate to make an order for production of the documents which set out the terms of the settlements of the plaintiff’s claims arising from the two previous accidents.

[30]         The defendants are entitled to their costs in the cause.

No Pre Trial Examination Ordered For Witness Willing to Talk Through Counsel

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure. 71 Comments on No Pre Trial Examination Ordered For Witness Willing to Talk Through Counsel

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a witness who is willing to communicate through counsel should not be compelled to attend a pre-trial examination under oath.
In today’s case (Cabezas v. HMTQ) the Plaintiff was involved in a single vehicle accident and sued the Defendants claiming negligent highway maintenance.  In the course of the lawsuit the Plaintiff attempted to speak with and the “Capilano defendants provided a summary of the evidence Mr. Colville was expected to give should the matter proceed to trial. She stated further: “to the extent that you still wish to speak to Mr. Colville, he has asked that this be arranged through us and that we be present.”
The Plaintiff brought an application to compel pre trial examination under oath of this witness but this was dismissed with the Court noting that a witness willing to speak through counsel is indeed being responsive.  In reaching this conclusion Master Harper provided the following reasons:

[4]             Rule 7-5(1) provides as follows:

(1) If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may:

(a) order that the person be examined on oath on the matters in question in the action, and

(b) either before or after the examination, order that the examining party pay reasonable lawyer’s costs of the person relating to the application and the examination…

[11]         Rule 7-5 sets out a protocol which must be followed before an application for an order for a pre-trial examination of a witness can be made. The applicant must establish that the proposed witness has refused or neglected on request by the applicant to give a responsive statement either orally or in writing relating to the witness’ knowledge of the matter in question or has given conflicting statements (Rule 7-5(3)(c)(i) and (ii)).

[12]         The fact that the witness has chosen to communicate through counsel does not amount to a refusal to give a responsive statement (Rintoul v. Granger, 2008 BCSC 1852 at para. 24).

[13]          Mr. Colville is agreeable to attending an interview in the presence of counsel.

Trial Venue Not Changed Due to "Overwhelming Cost of Expert Evidence"

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a change of venue application due to the ‘overwhelming cost of expert evidence‘.
In today’s case (Gaebel v. Lipka) the Plaintiff was injured in a 2011 collision which occurred in Powell River.  Both the Plaintiff, Defendant and some lay witnesses resided in Powell River.  The trial was scheduled to take place in Vancouver where the majority of expert witnesses involved in the case practiced.  The Defendant argued the trial ought to be moved to Powell River given the location of the majority of lay witnesses.  Master Muir dismissed the application citing a concern of the cost of producing experts to attend the out of town location.  In dismissing the application the Court provided the following reasons:

[9]             As I said, the plaintiff and defendants reside in Powell River. One of the employers resides in Powell River.

[10]         However, there are other witnesses that reside in Nanaimo, Campbell River, Langley, and then there is the question, of course, of experts. The majority of the experts, if not all of them, will be attending from Vancouver…

[14]         The costs of having experts travel to give evidence, even if they are willing or available to do so, is considerably greater than that of lay witnesses.

[15]         There was an issue as to the appropriateness of a jury trial given that the plaintiff resides in Powell River. The plaintiff was concerned that he would not be able to get a jury that was unfamiliar and unbiased with regard to the events in issue.

[16]         The defendants take that by the horns and advise that they will not have this matter tried as a jury trial if it proceeds in Powell River. So that is no longer a consideration.

[17]         The primary position advanced by the defendants was that the costs of the lay witnesses and the convenience to the plaintiff’s employer and others coming from Powell River overwhelmingly overbalance the plaintiff’s right to have the trial in Vancouver.

[18]         The plaintiff disputed that and, as I noted, provided evidence of where other witnesses actually reside. It appears that there are a number of witnesses who, although they may work occasionally in Powell River, do not reside there.

[19]         Given the overwhelming cost of expert evidence, it is my view that the test has not been met and the application is therefore denied.

"The Continuum Between the Information-Gathering and Litigation Stages"

Written by admin on . Posted in Civil Procedure.

Reasons for judgement were released today by the BC Court of Appeal discussing “the continuum between the information-gathering and litigation stages” in the context of an application for production of privileged documents.
In today’s case (Raj v. Khosravi) the Plaintiff was involved in a motor vehicle collision.  Both he and the at fault motorist were insured with ICBC.  The Plaintiff met with an adjuster to advance his claim.  After the initial meeting the ICBC adjuster commissioned the services of a private investigator who produced a report.
In the course of his lawsuit the Plaintiff requested a copy of this report but ICBC refused to provide it arguing it was subject to litigation privilege.  The plaintiff argued that the report was commissioned in the ‘investigative stage’ following the collision and further that even if the report was in part prepared for the purpose of defending subsequent litigation, it was also commissioned in the context of his claim for Part 7 benefits.   The lower courts reached opposing conclusions on whether the report was subject to litigation privilege.  In finding that it was, the BC Court of Appeal provided the following reasons on the sometimes parallel roles ICBC plays while investigating claims:

[50]         In my respectful opinion, the judge erred in characterizing the Meeting as part of the information-gathering process, thereby foreclosing a finding that litigation was “in reasonable prospect” when the Report was commissioned. The master, correctly in my view, described the Meeting as “information gathering for the purposes of defending an anticipated claim for lost income” (para. 27). Litigation may be “in reasonable prospect” at any point along the continuum between the information-gathering and litigation stages of an inquiry if an evidentiary basis is established that a party has more than just suspicions about the legitimacy of litigation occurring. The two stages are not mutually exclusive for such a finding. Moreover, this aspect of the test, as noted in Hamalainen, will not be particularly difficult to establish. The evidence in this case established that by the date of the Meeting the information regarding the nature of the accident and the parties involved had been sufficiently established for ICBC to admit liability on behalf of Mr. Khosravi. In my view, an evidentiary basis was established for the master’s finding that litigation was “in reasonable prospect” when the Report was commissioned.

[51]         Similarly, the master found that the dominant purpose of the Report was to assist ICBC in the conduct of Mr. Raj’s anticipated tort claim. She did so by accepting Mr. Kalisch’s evidence that there was no other purpose for the Report other than Mr. Raj’s tort claim, as any potential Part 7 claim by Mr. Raj would only become a reality if and when Mr. Raj provided written confirmation that he had no WCB coverage. While the Report might be relevant to a potential claim for Part 7 benefits in the future, such a claim at the time of the Meeting was not a purpose for the Report’s production. The lack of confirmation that Mr. Raj did not have WCB coverage, and therefore could not make a Part 7 claim at that time, corroborated Mr. Kalisch’s evidence that he had no purpose other than the anticipated tort claim for ordering the Report. Again, in my view it was open to the master on this evidence to find that the dominant purpose of the Report was to defend Mr. Raj’s anticipated tort claim.

[52]         In my respectful view, the judge erred in finding that there was a dual purpose for the production of the Report. The evidence of Mr. Kalisch, as accepted by the master, was that the only purpose for the Report’s production was the anticipated tort claim. Even if a dual purpose could be found to have existed, in my view the judge erred in finding that the dominant purpose of the Report was not litigation because Mr. Khosravi had not eliminated the competing Part 7 claim (para. 49). Mr. Khosravi was not required to eliminate all potential purposes for the Report in order to establish that its dominant purpose was litigation.

BC Court of Appeal Criticizes Consultation Reports Being Shoehorned As Expert Reports

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure. 112 Comments on BC Court of Appeal Criticizes Consultation Reports Being Shoehorned As Expert Reports

Reasons for judgment were released today by the BC Court of Appeal criticizing and restricting the practice of shoehorning physicians consultation reports into evidence as expert opinion.
In today’s case (Healey v. Chung) the Plaintiff was injured in a 2005 pedestrian/vehicle collision.  At trial he Plaintiff claimed it was a ‘catastrophic accident’ and sought damages between $485,000 and $1,037,000.  The trial judge rejected much of the Plaintiff’s evidence and awarded damages of just over $50,000.
In the course of the trial the Defendant introduced consultation reports of treating medical practitioners into evidence.  These did not meet the strict requirements of Rule 11-6.  The Plaintiff objected but the trial judge allowed the reports to be entered.  In finding this was improper and ordering a new trial the BC Court of Appeal provided the following reasons:

[19]         It is well established that clinical consulting reports, without more, may not be admitted for the validity of opinions expressed in them…

[21]         It is true, as the respondent contends, that Seaman and F.(K.E.) are cases in which the opinion sought to be adduced was found in clinical records that were voluminous, but I do not consider that circumstance detracts from the principle that a clinical record containing an opinion, such as these consulting reports, must substantially comply with the requirements of the Rules in order to attract the exception to the usual rule for examination of witnesses spoken of by Mr. Justice Hutcheon.

[22]         The respondent contends that she gave notice to Mr. Healey of her intention to use the letters, that Dr. Kuo knew of the qualifications of the two doctors, and that other deficiencies were “minor”. She says Mr. Healey was obliged to express his objections as required by R. 11-6(10) and (11).

[23]         Forthrightness between counsel is favoured and is to be expected in litigation. Yet I cannot say there was anything to which we have been referred that put the positive legal duty on Mr. Healey to object under those Rules for the reason that the consulting reports sent to Dr. Kuo and disclosed as part of her clinical records were simply not ‘expert reports’ as regulated by the Rules. While they may be professional opinions from one doctor to another in the course of treatment, the impugned documents do not comply with R. 11-2; I do not consider they carry the basic hallmark of an ‘expert report’, being an opinion intended by the author, at some point, to be presented for the assistance of the court. Significantly, they contain none of the information that is essential to qualification of the author as an expert, nor the information reviewed by the author by which the court may assess the cogency of the opinion.

[24]         As I do not consider that these clinical records can be considered to be ‘expert reports’ as that term is used in the Rules, entitled to the privileged treatment for receipt of hearsay evidence discussed by Mr. Justice Hutcheon, I conclude that R. 11-6(10) and (11) did not require a notice of objection.

[25]         In the alternative to the two documents coming within R. 11-6, Ms. Chung says the judge could have exercised his discretion and admitted the documents as opinions under R. 11-7. Rule 11-7 provides latitude to a judge to receive opinion evidence that is not included in an expert report:

(1)   Unless the court otherwise orders, opinion evidence of an expert, other than an expert appointed by the court under Rule 11-5, must not be tendered at trial unless

(a) that evidence is included in a report of that expert that has been prepared and served in accordance with Rule 11-6, and

(b) any supplementary reports required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served in accordance with Rule 11-6 (5) to (7).

…

(6)   At trial, the court may allow an expert to provide evidence, on terms and conditions, if any, even though one or more of the requirements of this Part have not been complied with, if

(a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part,

(b) the non-compliance is unlikely to cause prejudice

(i)    by reason of an inability to prepare for cross-examination, or

(ii)   by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or

(c) the interests of justice require it.

                                                                        [Emphasis added.]

[26]         Ms. Chung does not contend the judge exercised his discretion under R. 11-7(1). Her approach is consistent with the record that shows the judge was not asked to exercise his discretion, and it is consistent with Ms. Chung’s submission at trial which approached the question as one of compliance with R. 11-6. We are invited, however, to approach these documents as admissible in the exercise of discretion.

[27]         I do not consider that this is an appropriate case for us to engage for the first time in a full analysis of discretion, so as to draw our own conclusions. At trial the judge did not consider his R. 11-7 discretion and accordingly the possibility of exercising discretion is without his expansion. In XY, LLC v. Zhu, 2013 BCCA 352, 366 D.L.R. (4th) 443, Madam Justice Newbury for the Court adopted this description from Perry v. Vargas, 2012 BCSC 1537 at para. 22:

In my view the discretion provided for in R.11-7(6)(c) must be exercised sparingly, with appropriate caution, and in a disciplined way given the express requirements contained in Rules 11-6 and 11-7. That is, the “interests of justice” are not a reason to simply excuse or ignore the requirements of the other Rules. There must be some compelling analysis why the interests of justice require in a particular case the extraordinary step of abrogating the other requirements of the Supreme Court Civil Rules. None was provided.

[28]         Adopting that approach, in my view this is not a case for us to exercise the discretion that was available to the judge under R. 11-7.  There was ample medical evidence before the court, absent the opinions from these documents, to guide the trial judge in findings of fact. Further, it was open to the defendant to develop her own body of medical opinion and to advance it in proper form, including as to the required description of qualifications and experience and listing of opinion sought and matters considered. I see no compelling reason to derogate from the requirements of either R. 11-2 or R. 11-6 in this case. To do so, in my view, would admit into evidence opinions that were not crafted for that purpose and that are without the necessary information to permit consideration of their substance and effect in the context of the issues before the court.

[29]         Last, Ms. Chung contends that the two documents, in any event, were inconsequential in the judge’s reasons, and thus the admission of these documents had little impact on the outcome of the case.

[30]         One of the issues at trial was the assertion by Mr. Healey that he suffered from depression caused by the accident. This allegation bore upon the assessment of damages. To support this allegation was an expert report from Dr. O’Shaughnessy. Based upon the medical records and his interview with Mr. Healey, Dr. O’Shaughnessy diagnosed Mr. Healey as having an Adjustment Disorder with anxiety and an Adjustment Disorder with depressed mood. Yet the judge rejected all allegations of depression and instead relied upon the two consulting reports, saying:

[58]      Mr. Healey stated that he suffered from depression because of the accident. Depression was not reported in his post-accident symptomatology until 2008. Dr. Kuo’s records do show that in 2003 she concluded that Mr. Healey had symptoms consistent with depression. This reporting, however, preceded the accident, and according to the psychiatric specialists Dr. Kuo referred Mr. Healey to in 2009 and 2010, no evidence supported any Axis 1 diagnosis in the DSM-IV, and no symptoms met the criteria for post-traumatic stress disorder.

[31]         I would first observe that Dr. Truong’s report cryptically states “Axis 1: Adjustment d/o with depressive symptoms – in remission” and by so saying Dr. Truong’s report appears to be inconsistent with the judge’s statement: “according to the psychiatric specialists [Dr. To and Dr. Truong] no evidence supported any Axis 1 diagnosis”. Perhaps this exemplifies the effect of non-compliance with the requirements for expert reports, as the judge drew from the report a categorical absence of any Axis 1 diagnosis which appears to be inconsistent with Dr. Truong’s report. Setting that discrepancy between the judge’s assertion and the notation in Dr. Truong’s report aside, it is clear from the judge’s para. 58 that he put weight on the consulting reports and drew conclusions from them adverse to Mr. Healey. In other words, they were consequential in the judge’s reasoning; one cannot say the reports had little bearing on the outcome, in my view.

 

"The Use of an Interpreter, on its Own, Is Irrelevant to the Issue of Credibility"

Written by admin on . Posted in Civil Procedure. 49 Comments on "The Use of an Interpreter, on its Own, Is Irrelevant to the Issue of Credibility"

Reasons for judgment were released today by the BC Supreme Court addressing whether a witness who has a good understanding of English should have their credibility negatively assessed where they choose to testify trough an interpreter.  In short, the Court held that this factor alone is irrelevant in assessing credibility.
In today’s case (Kim v. Khaw) the Plaintiff was injured in a vehicle collision that the Defendant was responsible for.  The Plaintiff sued for damages and testified using a translator.   The Plaintiff had a good understanding of English and as a result the Defendant argued the Plaintiff’s credibility should be negatively impacted by using the buffer provided by a translator.   Madam Justice Sharma disagreed and in doing so provided the following reasons:

[100]     Mr. Kim’s comprehension of English was good; therefore, does his decision to use an interpreter impact his credibility?

[101]     There is no doubt that hearing evidence through the filter of an interpreter can be challenging: Wang v. Hu, 2003 BCSC 552 at para. 24; R. v. A.F., 2010 ONSC 5824 at para. 87. The court must be alive to the fact that the impact or nuance of interpreted testimony may be “lost in translation”, especially during cross-examination. For example, inconsistencies in explanations or expressions may be the inevitable result of there being no exact translation, or perhaps many translations, for an English word, phrase or concept in the foreign language.

[102]     It is unfortunate, but inescapable, that hearing evidence through an interpreter may make it more difficult to consider and weigh that evidence. Difficulty, however, cannot be a bar to fairness; fairness is the measure against which the court must gauge whether the fact that evidence was given via an interpreter is relevant to or affects the credibility of that witness’ testimony.

[103]     Mr. Kim felt more comfortable testifying in Korean. A major issue in this case is whether his mental status has been detrimentally affected by the Accident. This required him to discuss and reveal highly personal and emotional information, including his intimate relationship with his wife and his interactions with his children. He testified about matters that all doctors accepted he felt enormous shame and guilt about. I find it reasonable and understandable that he would choose to testify in his native language even if he does understand English well. This is especially true because he is not just a witness, but a party, in the case.

[104]     The comfort of one’s native language, even when English is understood, is surely a factor for many witnesses who testify via an interpreter. That comfort would be seriously eroded if, without reasonable justification, a court were to take into account a witness’ preference for interpretation when weighing their evidence or assessing their credibility. It is my view that the use of an interpreter, on its own, is irrelevant to the issue of credibility. To find otherwise could unfairly prejudice participants in the trial process who used interpreters and could undermine public confidence in the trial process. In my view, there must be some evidence, or a reasonable inference that can be drawn from evidence, that the witness’ use of the interpreter was not necessary for them to fairly participate in the trial, but rather was a deliberate intent to gain some advantage: Mee Hoi Bros. Co. v. Borving Investments (Canada) Ltd., 2014 BCSC 1710 at para. 13 and 21 [Borving].

[105]     In this case, Mr. Kim demonstrated that he does understand spoken and written English, and that he speaks English (although, from the very little I heard, with a heavy accent and somewhat haltingly). I understood the defendants to rely on Mr. Kim’s facility with English as another reason the court should not rely on his testimony. I find that to be irrelevant to the weight I attach to his evidence. In this case, the defendants’ counsel was able to conduct a vigorous and effective cross-examination of the plaintiff despite the interpretation.

[106]     I do not discount the possibility that counsel may want to argue that the use of an interpreter, where one was not absolutely necessary, caused the trial to be longer which should be recognized in a costs award, but that issue is entirely different from credibility.

Parties of Record Have Standing To Address Pre Trial Witness Examination Orders

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure. 60 Comments on Parties of Record Have Standing To Address Pre Trial Witness Examination Orders

Reasons for judgement were released this week (Brooks v. Abbey Adelaide Holdings Inc.) considering the procedural question of whether a party of record has standing to make submissions during an opposing party’s application for an order compelling the pre-trial examination of a witness.  In short the Court held that all parties of record have standing to make submissions during these applications although the standing is limited.  In reaching this decision Master Young provided the following reasons:

[1]             THE COURT:  I have been asked to decide whether a party to an action has standing in a hearing of an application by another party to examine a witness prior to trial under Rule 7-5 of our new Supreme Court Civil Rules.

[2]             Apparently there is no authority on this point under the new Civil Rules..

[12]         I find that the party has a right to make submissions on the scope and the duration of the examination as it relates to relevance and proportionality.

[13]         So I find that they have limited standing. They do not have standing to object to a witness being questioned, because I think that infringes the common law right of property to a witness. But I do find that they do have standing to address procedural issues, proportionality issues and issues of privilege.

[14]         Having said that then, I will allow the plaintiff to make submissions of the application.

Absent Agreement Discoveries To Take Place At Lawyers Office

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized.

Reasons for judgement were released today (Schroeder v. Sweeney) by the BC Supreme Court, Kelowna Registry, addressing a practice point.  Where are examinations for discovery to take place if the parties can’t agree?  Master McDiarmid ruled that the default is the lawyer’s office of the party being examined.  The court provided the following reasons:

[4]             Subrule 7-2(11) needs a bit of analysis. It provides, firstly, that you are to find a Registry closest to where the party to be discovered resides in British Columbia and then you are to find a location within 30 kilometres of that registry. It does not say that the discovery is to take place at the registry, although in the past that is where discoveries did take place. All of the larger registries had rooms where examinations for discovery occurred. It is true that often the most convenient location is the place where the court reporters carry on their business.

[5]             However, I have always understood the default position (for parties resident in B.C.) to be that if the parties could not agree, the party would be discovered at that party’s counsel’s office.

[6]             There are reasons why that is convenient to the party. One reason is that the full documents in the possession of that party will be available. A second is that the party being examined is in a surrounding where that party’s counsel practises and so the party is presumably somewhat more comfortable there.

[7]             In responding to this particular application, I reviewed some comments — and not unreasonable comments by the plaintiff, where he deposes basically, that yes, he  could go to the court reporter’s office, but he does depose to some issues with parking. That does, to some extent, impact on his convenience. It seems to me though that the — what I am going to call the default provision which was certainly the provision I understood as counsel was that if parties could not agree, the discovery should take place at the office of the counsel representing the party to be discovered. The matter is somewhat of an important practice point.

[8]             I am dismissing the application and ordering that the discovery take place at the office of the plaintiff’s counsel. The part of the application that the plaintiff attend Okanagan Court Reporters is dismissed and instead of that, the order is that the plaintiff attend at examination for discovery at the offices of his counsel.

It Ain't Over Till It's Over- Fresh Evidence Allowed After Close of Injury Prosecution

Written by admin on . Posted in Civil Procedure, Uncategorized. 67 Comments on It Ain't Over Till It's Over- Fresh Evidence Allowed After Close of Injury Prosecution

After the conclusion of a personal injury trial it can take several weeks if not months before judgement is granted.  If relevant developments occur during this time the Court has discretion to re-open the trial.  Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, canvassing this area of the law.
In today’s case (Miley v. Abulaban) the Plaintiff sued for damages as a result of personal injuries.  42 days after the Defendant closed their case the Plaintiff sought to introduce fresh evidence that the Plaintiff was fired from his employment.  Despite the Defendant’s objections the Court allowed the evidence to be introduced and in doing so Madam Justice Hyslop provided the following reasons:
[8]             The plaintiff and defendants agree as to the law for the introduction of fresh evidence. The law is as stated by Madam Justice Satanove in Inmet Mining Corp. [v.] Homestake Canada Inc., 2002 BCSC 681, as follows:
[5]        The principles of law governing when a trial judge may re-open a case after judgment has been rendered, but before the order has been entered, has been discussed by our courts in a number of decisions. I have endeavoured to consolidate the applicable principles as follows:
1.         A trial judge has the unfettered discretion to re-open a case before the entry of the order, but the discretion must be exercised judicially and sparingly. (Sykes v Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.)).
2.         The purpose of the discretion to re-open is not intended to be an alternative method of appeal. (Cheema v. Cheema (2001), 89 B.C.L.R. (3d) 179 (S.C.)).
3.         Filing of a notice of appeal does not remove the discretion of a trial judge when a factual error has been identified (my emphasis). (Banyay v. Actton Petroleum Sales Ltd. (1996), 17 B.C.L.R. (3d) 216 (C.A.)).
4.         The discretion may be properly exercised where the trial judge is satisfied that the original judgment is in error because it overlooked or misconstrued material evidence or misapplied the law. (Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257 (B.C.C.A.)).
5.         It is not a proper basis for exercising the discretion if the applicant merely advances an alternative argument which could easily have been advanced at trial. (Cheema v.Cheema; Sykes v. Sykes). Where a court of competent jurisdiction has adjudicated upon a matter it will not (except under exceptional circumstances) re-open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but were not. (Maynard v. Maynard, [1951] S.C.R. 346; Angle v. Canada (Ministry of National Revenue), [1975] 2 S.C.R. 248).
6.         New evidence is not an essential prerequisite to exercising the discretion. (Sykes v. Sykes).
[9]             Mr. Justice Ehrcke stated in Zhu v. Li, 2007 BCSC 1467, at para. 14:
The principles governing an application to adduce fresh evidence on an appeal are well-known. They were summarized succinctly by McIntyre J. in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1964] S.C.R. 484.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[10]         The plaintiff offered to be examined by the defendants on this matter and the defendants have chosen not to do so. I see no purpose in the defendants pursuing this course of action as Mr. Miley may not have new employment and this would cause delay
[11]         I must say that it is not surprising that Mr. Miley lost his employment as a result of his lie. An employer relies on integrity and honesty of an employee. This is particularly so when a person applies for employment and represents his or her qualifications. Based on representations in résumés, an employee is given duties, responsibilities and remuneration accordingly.
[12]         Applying the principles set out above, Mr. Miley’s termination could not have been discovered by due diligence because the event of his firing had not occurred. The defendants argue that Mr. Miley knew that his résumé was false as to the representation that he had a degree when he knew he did not, and that he could have brought this to the attention of his employer at any time. That is true, but Mr. Miley did not know he would be caught and that his employer would terminate him, although as I stated earlier, it should not have been a surprise to Mr. Miley.
[13]         The evidence is credible as the documents are disclosed terminating Mr. Miley’s employment. I find that the documents produced by the plaintiff as to his termination are credible.
[14]         The evidence is relevant because although Mr. Miley is without employment, it may affect the issue of earning capacity or it may not, as at the time of trial Mr. Miley’s responsibilities and remunerations with Coast Capital were likely based, in part, on his having a degree. However, Mr. Miley testified that being a professional writer could be attained by education or by experience. Whether this testimony, given by Mr. Miley, was in anticipation that his lack of a degree would be revealed, I do not know.
[15]         The evidence of his termination is neutral.
[16]         I allow the plaintiff’s application and the evidence allowed is that Mr. Miley’s employment by Coast Capital has been terminated by them.