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Court Has Jurisdiction to Overturn an IME Order After the Examination is Complete

If a party to a lawsuit is ordered to attend an independent medical exam can a Court hear an appeal of the order after the examination is complete?  The BC Court of Appeal addressed this in reasons for judgement released today and the answer is yes.
In finding that an appeal of an IME order is not moot even after the examination takes place the Court provided the following reasons:
[23]         The Insurers submit that the appeal is moot because prior to commencement of his appeal Dr. Wright attended the IME, answered the questions posed by Dr. Connell, completed and submitted the 13-page questionnaire referenced in the order, and completed and submitted the Authorization and Consent form and the Governing Law and Jurisdiction Agreement form referenced at para. 4 of the order. In consequence, the respondents say Dr. Wright has now complied with all of the substantive provisions of the order and given that compliance, the appeal should be quashed as moot…
[29]         Items 7 to 11, generally speaking, deal with the consequences of the IME order and seek certain specific relief arising out of that order. For example, item 8 seeks that the expert witness report prepared by Dr. Connell, together with copies of his notes and medical records, be destroyed. These issues give life to the appeal and items 1 and 2 which seek to set aside the order granting the IME. Given that the Insurers may rely on that report at trial, it cannot be said that the issue is moot. If this Court concludes that the IME order should not have been made, it will be necessary to determine what relief, if any, is available to Dr. Wright and that relief could arguably include some prohibition or restriction on the use of Dr. Connell’s report.
[30]         In the circumstances therefore I would dismiss the application to quash.

The "Acceptable Practice" For Taking Pre-Trial Witness Statements

Courts in British Columbia frown on the practice of having witnesses commit their evidence in affidavit form before trial.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this practice and explaining the Courts concerns with it.
In this week’s case (Staaf v. ICBC) three witnesses testified on behalf of ICBC. Prior to doing so all provided sworn statements authenticating various business records.  The Plaintiff argued that less weight should be given to these witnesses evidence because of this practice.
The Court agreed that the practice is to be discouraged, however went on to note that in the circumstances of this case no lesser weight should be attached to these witnesses.  In discouraging the practice of having witnesses swear pre-trial affidavits Mr. Justice Burnyeat provided the following comments:
[6]             The question which arises is the propriety of recording statements of witnesses in sworn form before trial.  Statements in sworn form should not be taken.  The consciences of witnesses at a trial are fettered by committing them in advance to a story which is favourable to the client of the lawyer preparing the affidavit.  To obtain a sworn affidavit or a statutory declaration not only influences the evidence that a witness may give under oath at a trial but also compromises accurate and truthful evidence at trial because a previous statement may compromise the interest of the witness who wishes to testify truthfully but the truth may be in conflict with the previously sworn statement.  Before trial, the acceptable practice is to take statements from witnesses but not arrange for those witnesses to swear affidavits or to make statutory declarations.
[7]             If testimony is to be given by affidavit, an application should be made pursuant to Rule 12‑5(59) of the Rules of Court.  Subject to the order of the Court to the contrary, that affidavit must be served at least 28 days prior to such an application being heard by the Court.  No such application was made relating to the evidence of these three affiants…
[9]             Under the circumstances, it would have been appropriate for counsel for the Defendants to apply for an order pursuant to Rule 12‑5(59) and, if that order had been granted, for counsel for the Plaintiff to require those witnesses to be called for cross-examination at trial pursuant to Rule 12‑5(61).  That was not done.
[10]         When it became apparent that three Affidavits had been sworn, counsel for the Defendants was urged by me to make an application that the evidence of the three be given by affidavit and counsel for the Plaintiff was urged to make a subsequent application that the three witnesses be called to the Trial for cross-examination.  That is what occurred and those orders were made.
[11]         In the circumstances of this case, I am satisfied that the sworn testimony of the three witnesses were in no way compromised by the assumption that the truth of what they were saying was in conflict with the affidavits that they had sworn.  First, the affidavits were sworn in order to place before the Court the business records that would be relied upon by the Defendants.  Second, the affidavits were prepared and sworn on the assumption that it would then not be necessary for the three affiants to appear at the Trial.  Third, the three witnesses were merely attaching business records and were not providing direct observations that they had made relating to the accident.  Fourth, the affidavits did not concern controversial matters.
[12]         In the circumstances of this case, I attach no lesser weight to the testimony at Trial of the three witnesses by virtue of the fact that they had all sworn affidavits prior to testifying.  Because of the two Orders made and in view of the nature of what was set out in their Affidavits, I am satisfied that it is not appropriate to disregard the whole of their testimony.

Costs Ordered Following "Unnecessary" Defence Case Planning Conference

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing when Case Planning Conferences are unnecessary and finding that a costs order is appropriate in the face of such a CPC.
In today’s case (Stewart v. Robinson) the Plaintiff was involved in a collision and sued for damages.  The Defendant set down a CPC seeking an order requiring the Plaintiff to reveal the “the areas of expertise” of the experts the Plaintiff would rely on at trial.  The Defendant also sought a few collateral orders such updated lists of documents and timelines for discoveries.  The Court held that the first order was one the Court had no jurisdiction to make and that the further orders were unnecessary given that the Plaintiff was fulfilling their disclosure duties under the Rules of Court.
Master Bouck dismissed the Defendant’s application and in doing so found it was an uncessary hearing and ordered that costs be paid.  In reaching this result the Court provided the following reasons:
[25]         Rule 5-3 (3) requires the court to make a case plan order following a CPC. In my view, that requirement presumes that the CPC served some purpose…
[28]         The plaintiff submits that the sole purpose of the case planning conference was an attempt by the defence to ferret out information about the plaintiff’s experts even though such a purpose is contrary to well-established law. The plaintiff also cites Galvon v. Hopkins, 2011 BCSC 1835, and Amezcua v. Norlander, 2012 BCSC 719 (Master)…
[34]         Read together, the above authorities stand for these propositions:
1.  rules of civil procedure do not trump substantive law, including the principle of litigation privilege;
2.  a party is not required to reveal, in a case plan proposal or order or otherwise, the name of any expert or the area of expertise of any intended expert before the 84-day deadline for the service of expert reports; but
3.  the court may order that the service requirements under Rule 11-6 (3) be abridged such that expert reports are to be served earlier than the 84 days before trial. Such an order will only be made in exceptional cases where a compelling reason for early disclosure is demonstrated.
[35]         While a party may volunteer details of their expert evidence in advance of the 84-day deadline, a CPC is not required for that purpose. The information can simply be provided in correspondence without the necessity of judicial involvement. As the court determined in Dhugha, the omission of the name of an expert or his or her area of expertise from a case plan order does not preclude the admission of that expert evidence at trial.
[36]         Thus, the order sought in the defendant’s case plan proposal with respect to experts could not be made by the court. The order proposed by the defence at the CPC with respect to experts is not necessary.
[37]         That leads to the next question: was a CPC necessary for any other purpose? In my view, it was not.
[38]         An order requiring the parties to exchange further amended lists of documents by certain dates is not necessary. Both counsel acknowledge the duty to provide ongoing document disclosure as required by theSCCR. The suggested deadlines micromanages a case that does not require such management.
[39]         An order requiring delivery of a certain therapist’s records by a specified date is also not required. The plaintiff has volunteered to provide those records.
[40]         An order identifying the timing and length of examinations for discovery is also unnecessary. The parties have agreed to examination dates. The length of these examinations was not seriously in dispute at this conference and did not require judicial management.
[41]         In short, I find that no case plan order ought to or need be made at this time…
[46]         Having already concluded that the CPC was unnecessary, I award the plaintiff costs related to counsel’s preparation and attendance and the conference. Those costs are fixed at $750 all inclusive, not payable forthwith.

Principled Exception to the Hearsay Rule Fails to Save Mystery Witness Statement

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the use of the principled exception to the hearsay rule with respect to a statement from an unidentified witness.
In today’s case (Biggs v. Doe) the Plaintiff was involved in a serious collision in 2006.  His motorcycle struck the pup trailer of a dump truck.  This resulted in profound injuries which required an above knee amputation for the Plaintiff.
The Plaintiff alleged that an unidentified motorist struck his motorcycle from behind which forced him to lose control causing the collision.  In support of his claim the Plaintiff attempted to introduce the hearsay evidence of an unknown witness present at the scene who apparently could corroborate the Plaintiff’s version of events.  In finding there is no reliability to the proposed evidence Mr. Justice Bernard provided the following reasons in excluding it:
 [61]         Mr. Biggs seeks to tender the unknown woman’s statements to Mr. Lasser for their truth, pursuant to the well-established “principled exception” to the rule against hearsay. The principled exception permits the admissibility of a hearsay statement for its truth if it is shown, by the party seeking to adduce it, to be both necessary and reliable. In relation to the latter, it is threshold (vs. ultimate) reliability that is the evidentiary standard that must be met for admissibility…
[64]         Having due regard for the foregoing legal principles, for the reasons which follow I am not persuaded that the plaintiff has established that there is threshold reliability to the evidence in question; accordingly, the claimed observations of the unknown witness cannot be admitted into evidence for their truth. In short, the plaintiff has not established either that the statements were made in circumstances in which there is no compelling concern about their reliability, or that sufficient means for assessing their reliability exists.
[65]         In this regard, virtually nothing is known about the woman to whom the statements are attributed other than she was present at the scene of the accident, claimed to have seen it, was upset by it, and chose not speak to the police or even identify herself to them in circumstances which cried out for doing so. Her failure to act responsibly is very troubling. It raises concerns about her motives and, thus, the reliability of any words attributed to her.
[66]          Significantly, this woman cannot be linked to a specific vehicle, and there is no evidence of where she was and, thus, what her perspective was at the time of her observations. In the absence of such evidence, no reasonable inferences can be drawn about her ability to make accurate observations and relate them to others.
[67]         The nature of the event the unknown woman witnessed is an important factor. In the instant case, the event was a dynamic one involving multiple motor vehicles moving at relatively high speeds in relation to one another and at the time of the collision with the pup trailer. Even witnesses who are well-positioned, focused, and have clear and unobstructed views are prone to misperceiving or misconstruing such highly dynamic events. 
[68]         The circumstances in which the statements were made and the absence of any recording of relatively complex assertions at a time reasonably proximate to the utterances, raise significant concerns about Mr. Lasser’s ability to restate them with accuracy. In this regard, it is noteworthy that Mr. Lasser was not an investigator and that his focus was on the task of setting out road flares. The unknown witness was in an agitated state and Mr. Lasser neither questioned anything she said nor sought any clarification. Testifying to the gist of what an eyewitness said is troubling when the statements venture well beyond a simple and clear assertion that can be repeated with confidence as to its accuracy. For example, at trial Mr. Lasser remained uncertain as to whether the unknown woman said the events unfolded ahead of her or from behind, as observed through a rear-view mirror.
[69]         Finally, it is of some significance that the unknown witness described events which are inconsistent with other reliable evidence. For example, it is not a matter of controversy that Mr. Booth’s fifth wheel was in the far right lane at all relevant times. This evidence is difficult to reconcile with the unknown woman’s version of events which apparently has the motorcyclist in the same lane as the fifth wheel when it accelerated into the bumper of the fifth wheel to avoid a car merging from his right side. There is no lane to the right of the merge lane; moreover, the unknown witness does not describe a rear impact to the motorcycle.
[70]         For all the foregoing reasons, I am not persuaded that the evidence in question meets the standard of threshold reliability; indeed, in my assessment it falls very far short of it. In the absence of threshold reliability, admissibility under the “principled exception” to the rule against hearsay must fail and, thus, there is no need to determine whether the “necessity” prong of the two-part test has been satisfied.

Trial Re-Opened to Prove Prior Inconsistent Statement

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, discussing the discretion to reopen a case prior to judgement to call new evidence.
In the recent case (Kostecki v. Li) the Plaintiff was injured in a collision and sued for damages.  In the course of the trial she was cross examined about statements attributed to her in a consultation letter from a treating neurologist which “can be seen as inconsistent with Ms. Grace’s evidence of the seriousness of the accident and of the persistence and seriousness of her ongoing symptoms.”
The Plaintiff did not adopt the statements contained in the letter.  After the close of the case the trial judge noted the limitation of such cross examination absent proof the statement was made.  The Defendant brought an application to re-open the case and call the doctor to prove the statement.  In allowing this request Mr. Justice Schultes provided the following reasons:
[18]         No judgment has been pronounced and only the plaintiff has made submissions. The cases demonstrate that the discretion is exercised much more readily prior to judgment.
[19]         The failure to call this witness originally was due to a simple mistake by counsel in failing to grasp the evidentiary value of Dr. Beckman’s report standing alone, if the plaintiff failed to adopt its relevant portions. The purpose of reopening would only be to remedy that error and to put the defendant in the position that he would have been in if it had not been made. It confers no additional benefit beyond this corrective purpose. It represents proof of statements with which the plaintiff has been confronted, and the only potential additional evidence will be any explanation by Dr. Beckman of his process of recording patient histories and any aspects of that process that might allow him to vouch for the accuracy of the statements he has recorded in his letter.
[20]         In this regard, as in this case, when it is the defendant who applies to reopen and the plaintiff has not called reply evidence, the additional defence evidence can simply be considered as a continuation of the defence case and is even less prejudicial than when a plaintiff seeks to reopen:  Mitsubishi Heavy Industries Ltd. v. Canadian National Railway Company, 2011 BCSC 1536, at para. 34.
[21]         In my view, prejudice to the plaintiff here is minimal or non‑existent. What she loses is the purely tactical benefit of a slip-up by opposing counsel. We obviously work in an adversarial system and hard knocks are inevitable, but my having to decide the critical issue of credibility with a piece of evidence that may be highly relevant to that assessment sitting on the sidelines only because of counsel error is indeed the stuff of which miscarriages of justice are made.
[22]         Accordingly, the application is allowed with respect to the evidence of Dr. Beckman only. His evidence in the reopening will be restricted to proof of those portions of his letter that were put to Ms. Grace. That obviously includes evidence going to the accuracy of what he has recorded, including his note‑taking and report‑writing practices.

BC Court of Appeal – Alleged Witness Financial Gain is Fair Game in Injury Claim Cross Examination

The BC Court of Appeal addressed the fair scope of witness cross examination with respect to alleged bias in reasons for judgement released last week.
In last week’s case (Mazur v Lucas) the Plaintiff was employed as a legal secretary for a Vancouver law firm.  While on disability leave she was involved in a collision.  She sued for damages alleging the collision related injuries prevented her from returning to work.
The Plaintiff was represented by a lawyer from the firm that she worked at.  In the course of the trial the firm’s Human Resources Manager testifed with respect to the Plaintiff’s “excellent work performance“.   The Defendant’s lawyer cross examined this witness, suggesting bias in that the firm may financially gain if the jury awarded significant damages as the claim was likely being prosecuted by the firm on a contingency basis.  Although this evidence did not lead to any harmful admissions the Plaintiff argued the cross examination was prejudicial.  The BC Court of Appeal found that this line of questioning was fair game and in reaching this conclusion provided the following reasons:
[21]         The respondents’ cross-examination opened by noting that Ms. Mazur was being represented by a lawyer from Clark Wilson. The respondents’ counsel put the suggestion to Ms. Morrison that personal injury cases are generally dealt with by contingency fee agreements and that Clark Wilson possibly stood to gain from any award Ms. Mazur received. Ms. Morrison stated she had no knowledge of the fee arrangement. Ms. Mazur’s counsel did not object to this line of questioning and even re-examined the witness in this area.
[22]         After the witness and the jury were excused, Ms. Mazur’s counsel asserted the questions were improper, suggesting counsel was insinuating that Ms. Morrison’s testimony was influenced by the likelihood that her firm had a financial interest in the outcome of the trial.  He asked the judge to tell the jury to disregard this evidence in her charge. Counsel did not make a mistrial application.
[23]          In her final charge to the jury, the trial judge referenced the cross-examination of Ms. Morrison and  instructed the jury as follows:
…The defendants say there is reason for Ms. Morrison to be biased in her evidence.  I should note, however, that while it is entirely up to you to decide if you thought Ms. Morrison had any reason to be biased in her evidence, that not only is there no evidence to support a suggestion that the law firm of Clark Wilson might benefit from this lawsuit, such a consideration is not relevant to your deliberations.  I do not believe [counsel for the respondent] was suggesting through her questions that you should draw such an inference.  She was merely reciting a number of factors that you might properly consider as to bias.  In any event, such a consideration, that is, whether Clark Wilson might benefit from this lawsuit, is irrelevant to your considerations.
[24]         There was no objection to this instruction. However, on appeal, Ms. Mazur submits this instruction was ambiguous, confusing and insufficient. She contends that the comments resulted in placing an irrelevant and highly prejudicial notion in the minds of the jury that any award would benefit Ms. Mazur’s lawyer.  Ms. Mazur believes the jury was influenced by the suggestion that the law firm stood to gain financially.
[25]         I agree with the respondents that the questions put to Ms. Morrison on cross-examination appropriately probed any potential bias arising out of her dual role as a witness from the law firm employing Ms. Mazur and as a management employee of the law firm representing Ms. Mazur. The cross-examination of a witness with respect to potential bias is a legitimate subject of questioning.
[26]         The judge’s instructions were straightforward and correct in law. She properly left the jury with the task of evaluating Ms. Morrison’s evidence and, in particular, of assessing whether her interest in portraying her firm in a favourable light compromised her objectivity. The judge also explained to the jury that there was no evidence to suggest that Clark Wilson had a pecuniary interest in the outcome of the case and, in any event, no basis on which it could find that any such interest might have influenced Ms. Morrison’s testimony.
[27]         I am of the view that the impugned instructions were comprehensible and unobjectionable. I am strengthened in this view by the fact that the appellant’s trial counsel raised no objection to them. Counsel was in a good position to assess the adequacy of the instructions in the context of the evidence and of the charge as a whole, and his failure to object is, in my opinion, telling. I would not accede to this ground of appeal.

Who Should Address Costs Following a Mistrial?

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing a technical procedural issue, namely which judge should address a costs application following a mistrial.
In this week’s case (Walker v. Doe) the Court declared a mistrial on the 14th day of a Jury trial following closing submissions of counsel for the plaintiff.  The Defendant sought costs and an issue arose about who was best to address this, the presiding judge for the initial trial or the judge who would ultimately oversee the mistrial.  The Court held it was appropriate, in the circumstances of this case,  for the initial judge to address the costs issue.  In reaching this conclusion Mr. Justice Voith provided the following reasons:
[12]         The broad question of whether there is a “longstanding practice” in this province that directs that the costs arising from a mistrial should be assessed by the ultimate trial judge misses an important aspect of the particular issue before me. The issue on this application is not, as the Response filed by the plaintiff suggests, whether “[t]he allocation of costs thrown away as a result of the mistrial should be in the ultimate cause or decided by the judge before whom the case is ultimately tried”.
[13]         The real issue, instead, is who should hear an application for costs, following a mistrial, when the dominant focus of that cost application is an order for special costs against counsel for the party that caused the mistrial. The fact that the dominant, if not overwhelming, focus of the defendant’s application is an order for special costs against counsel is patent from the submissions of the parties as well as from the materials and authorities that each has filed…
[24]         The benefit of having the judge who heard the trial and counsel’s submissions which gave rise to a mistrial, also hear the ensuing special costs application is obvious. In Cunningham v. Slubowski, 2004 BCSC 1204, Madame Justice McKenzie, as she then was, following a 20 day trial, heard an application for costs, including special costs, against counsel. She observed:
[61]      This trial was difficult for all concerned. Ms. Wellburn provided me with valuable assistance on this hearing. She made a valiant effort to grasp the course of the proceedings, but had the disadvantage of not having been counsel at trial. Counsel ordered a few transcripts of the proceedings, but I decided on 7 May 2003, on counsels’ request, that full transcripts were not justified by the expense. As the trial judge, I had the unique position of assessing the course of the proceedings at trial. My recollection remains vivid and, as referred to above, I have considered all the voluminous material filed on this application.
[25]         The foregoing comments are apposite. Notwithstanding the passage of time, my memory of the trial and of the matters leading to the mistrial remains good. My memory of many events remains vivid. Counsel for Mr. Walker sought to argue that another judge, with the benefit of transcripts and the Mistrial Ruling, would be in an equally good position to address the instant application. I do not think that this is so…
29]         I do not consider that another trial judge could address such submissions as readily or as easily as I could. This is so even if extensive transcripts from the first trial were ordered…
[30]         I consider that the foregoing considerations remove this application from the ambit of the “general rule” referred to in Joy and that I should hear the defendant’s application.
[31]         I have also considered whether, having arrived at the foregoing conclusion, I should defer dealing with the substance of the application until after the appeal of the Mistrial Ruling. This would have the benefit of avoiding the costs that would be incurred in hearing the application and that would be wasted if the plaintiff is successful in its appeal of the Mistrial Ruling or, indeed, from these reasons. Conversely, if the Mistrial Ruling is upheld, I expect, having regard to the history of the matter, that any cost order I make will likely be appealed in any event. On balance I consider it better and more efficient to have each of the Mistrial Ruling, these reasons, as well as the eventual reasons from the cost application available before the hearing before the Court of Appeal takes place.

Inadequate Notice of Application Criticized By the BC Supreme Court

Reasons for judgement were released last week serving as a reminder that the new Rules of Court require fulsome arguments to be set out in applications filed with the Court.
In last week’s case (Dupre v. Patterson) the Defendant brought a summary trial application seeking to dismiss the Plaintiff’s lawsuit.  Not only was the application unsuccessful with the Court finding the Defendant at fault for the collision underlying the litigation, the Court went on to give the following criticism of applications that fail to set out adequate factual or legal arguments in their support:
[44]         Before concluding, I wish to say a few words about the material filed. 
[45]         The defendant’s notice of application filed July 3, 2013, did not comply with the Supreme Court Civil Rules.  The complete “Factual Basis” for the summary trial was set out on about three pages, double spaced.  The “Legal Basis” section said in its entirety:
1.         Rule 9-7
2.         Rule 14-1(12) – costs
3.         Motor Vehicle Act, RSBC1996, c. 318, Part 3, section 183(2)(c).
[46]         There was not even a brief statement to the effect of “The court should dismiss the action because” and then setting out the reason or reasons why, in the defendant’s submission, that should be the result.
[47]         In Zecher v. Josh, 2011 BCSC 311, Master Bouck was faced with a similar situation, where the Legal Basis section in particular of the notice of application was wholly inadequate.  Master Bouck described what was required in order to comply with the Rules and said:
[29]      The defendants’ application for production of wage loss particulars and a calculation of any wage loss claim was dismissed due to the inadequacy of the material and argument presented. Both the factual and legal basis for the application are wanting.
[30]      Form 32 of the SCCR [Supreme Court Civil Rules] lends itself to providing both the opposing party and the court with full disclosure of the argument to be made in chambers. Parties should put in as much thought to the necessary content of that Form as is done when preparing the supporting affidavits. When a party is represented, responsibility for that content lies with counsel.
[31]      No doubt the Lieutenant Governor-in-Council intended Part 3 of Form 32 to contain more than a cursory listing of the Rules that might support the particular application. For example, common law authorities can and should be included as well as a brief legal analysis. Such an analysis is particularly helpful given that parties are not able to present a separate written argument in civil chambers unless the application is scheduled to take two hours or more of court time.
[32]      In my experience and observation, a comprehensive legal analysis can easily be included in a 10-page notice of application. As well, Rule 8-1(4) allows the parties to include a list of authorities in the application record.
[33]      By providing an effective analysis of the legal basis for (or against) making the order, the parties may well be able to resolve the application without attending court.
[34]      As an aside, I should note that the sparse content of this particular notice of application is unfortunately not unique; many such inadequate notices have been presented in chambers.
[48]         I agree with and adopt Master Bouck’s comments concerning what a notice of application must contain.  The same will apply with respect to an application response (Form 33), and the notice of application and application response under the Supreme Court Family Rules (Forms F31 and F32).
[49]         In Fraser, Horn and Griffin, The Conduct of Civil Litigation in British Columbia, 2nd ed. loose-leaf (Markham:  LexisNexis, 2007) one of the leading texts on practice and procedure, the authors say this concerning the “Legal Basis” section of a notice of application, at p. 32-3 [notes omitted]:
            The notice must set out the rule, enactment or other jurisdictional authority relied on for the orders sought and any other legal arguments on which the order sought should be granted (Rule 8-1(4)(c)).  If appropriate, applicable cases may be cited.  The argument to be made in chambers should be fully disclosed and should contain more than a cursory listing of the rules that might support the particular application.
[50]         The requirements under the current Rules represent a fundamental change from the practice under the former Rules of Court.  Under the former Rules, Rule 44(3) and Form 55 (the form of notice of motion) only required a bare statement of the Rule or enactment relied upon.  An outline (see Form 125 and former Rule 51A(12)), outlining the legal arguments to be made, was then delivered later in the exchange of motion materials and prior to the hearing.  That is not the practice under the current Rules.
[51]         If a notice of application does not contain the information now required under the Rules, the party filing it has failed to give proper notice – to the opposing party and to the court – of the nature of the application.  However, all too frequently, counsel in both civil and family cases are signing and filing inadequate notices of application and application responses.  The notice of application filed in this case was not at all unique.  However, such documents do not comply with the Rules.
[52]         In contrast to the bare-bones notice of application filed on behalf of Ms. Patterson, the application response was comprehensive and, in the page limit allowed under the Rules, set out both a detailed summary of the facts and an analysis of the legal basis on which the plaintiff said the court should find the defendant liable.  It represents the standard expected by the court.
[53]         In this case, the inadequacy of the notice of application was compounded by defendant’s counsel tendering a 14-page written submission at the hearing.  Since the hearing was estimated and set for 90 minutes, this was in breach of Rule 8-1(16). 
[54]         Rarely will a judge or master refuse to receive a written argument from counsel, provided it is not being used to “sandbag” or take the opposition by surprise.  However, tendering a written argument at the hearing is neither an alternative to, nor a substitute for, setting out the “Legal Basis” in a notice of application or an application response in accordance with what the Rules and the case law require.
[55]         When counsel come to court with inadequate materials, which fail to comply with the Rules, judges and masters are placed in a very difficult position.  What often happens is that, to avoid the inconvenience and expense of an adjournment, matters proceed despite the inadequate materials, and judges and masters do the best they can in the circumstances.  But inadequate motion materials, which fail to comply with theRules, are incompatible with the efficient and timely disposition of applications.
[56]         If counsel are coming to court with inadequate material that clearly fails to comply with the Rules, and counting on being heard, they are misguided.  Judges and masters are entitled to expect that counsel will prepare application materials (including affidavits) that comply with the Rules, and do no less than this.  Counsel who come to court with application materials that do not comply risk having their applications at least adjourned, with potential cost consequences, until proper materials are filed.
[57]         That completes my ruling.

Witness Entitled To Copy of Statements Provided To ICBC Despite Litigation Privilege Claims

Reasons for judgment were released last week by the BC Supreme Court, Prince George Registry, addressing the entitlement of a witness to a collision obtaining a copy of a statement they provided to ICBC.
In last week’s case (Minnie v. ICBC) the petitioner was the witness to a collision involving a vehicle and a pedestrian.  She gave ICBC a statement detailing her account of what occurred.  The pedestrian ultimately sued the ICBC insured motorist for damages.  The witness wished to obtain a copy of her statement to ICBC but ICBC refused to disclose this.  The witness brought a Freedom of Information request for the statement but this did not prove fruitful.  The witness brought a petition in the BC Supreme Court.  ICBC opposed arguing there were further steps the witness could have taken through the Freedom of Information process and further that the statement was protected by litigation privilege.  Mr. Justice Steeves concluded that neither of these were valid reasons to keep a copy of the statement away from the witness.  In ordering ICBC to disclose a copy of the statement to the witness Mr. Justice Steeves provided the following reasons:
[41]  Although the respondent is entitled to have its litigation privilege protected, fairness requires that the petitioner be provided with a copy of her statement.  The petitioner is a stranger to the litigation about the accident; she is not a party and she has no interest in it.  I note that, if the petitioner was a party, there would be no question that she would be entitled to her statements, as I will discuss below.  I have some difficulty imposing on a private citizen the rules of a “sporting event” that are more onerous than those placed on parties.  The risk of applying those rules to a non-litigant without legal representation is that a person can, through accident or ignorance, make a mistake.  The mistake can be only embarrassing to the non litigant and/or it can distort the evidence before the court.  Neither is desirable.
[42]  Within the bounds of an adversarial system, private citizens should be encouraged to participate in the litigation process and disclosure to them of previous statements, as in this case, is a modest way to accomplish that objective.  The petitioner could have insisted on some kind of legal document that assured her that she would get a copy of her statement before she gave it.  She did not do that.  In m view, she did not have to do it ad nor should she now be at a disadvantage greater than a party for fail
[43] The petitioner is entitled to a copy of her statements as soon as practicable in order to review them herself and with her solicitor. However, I set conditions on that disclosure to recognize the litigation privilege that also attaches to the statements.  The disclosure of the statements does not extend to disclosure by the petitioner to other persons, including the plaintiff in the accident that she witnessed (or counsel for the plaintiff).  If, ultimately, there are issues at trial that involve the petitioner’s statements, they will have to be resolved by the trial judge.

Lay Opinion Evidence Addressing An Athlete's Potential

Reasons for judgement were recently shared with me addressing the scope of permissible lay witness opinion evidence addressing an athlete’s potential to advance in a professional sport.
In the recent case (Albert v. Politano) the Plaintiff was a professional boxer who suffered a hand injury in a collision.  One of the issues canvassed at trial related to the Plaintiff’s potential to succeed in his sport.  Ultimately a jury awarded the Plaintiff substantial damages for diminished earning capacity and this verdict survived appellate scrutiny.
In the course of trial the Court was asked to address if opinion evidence relating to the Plaintiff’s potential trajectory in the boxing world was admissible from lay witnesses.  Mr. Justice Greyell agreed that it could and provided the following reasons addressing this topic:
[7]  The plaintiff seeks to admit evidence from several witnesses who were former coaches of the plaintiff or persons involved with the plaintiff in a professional capacity.  These witnesses will testify as to the plaintiff’s accomplishments, his abilities and his pre-accident potential to advance as a professional in the boxing world.
[8]  The defendants…do object to these witnesses offering opinions as to the plaintiff’s potential for advancement in the boxing world…
[9]  The general exclusionary rule for opinion evidence is often not applied for lay witness opinion…Lay witness opinion evidence is received in some circumstances because the opinion is considered helpful to the Court…
[10]  The Law of Evidence in Canada sets out four criteria upon which lay witness opinion evidence may be received in evidence at paragraph 12.14…
[11]   I find the lay witness opinion tendered by the plaintiff meets these criteria.  Each witness worked with or at least closely observed the plaintiff’s development as a boxer.  each witness is in a better position than the trier of fact to draw an inference as to the plaintiff’s future career as a boxer.  The witnesses all have experiential capacity, which I find is different from the ordinary circumstances of life (to which the jury is accustomed).  Finally, the witness’ opinion is a “compendious mode of speaking”.  In other words, the facts are too subtle and too complicated to be narrated separately and distinctly (as explained in Graat at 841).
[12]  I further note that paragraph 12.12 of The Law of Evidence in Canada states” “couched in these terms, the modern opinion rule for lay witnesses should pose few exclusionary difficulties when based on the witness’ perceptions.  The real issue will be the assessment and weight to be given to such evidence after it is admitted.”  This latter comment, in my view, is one which can be adequately addressed by proper instruction to the jury following examination and cross-examination.

[14]  For the reasons stated, I will permit these witnesses referred to above to give opinion evidence as to the potential for the plaintiff’s advancement as a professional boxer.
To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy    to anyone who contacts me and requests one.