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Boundaries of Lay Opinion Evidence Discussed by BC Supreme Court

Written by admin on . Posted in Civil Procedure.

Generally opinion evidence is only admissible at trial by a duly qualified expert.  One exception to this rule relates to lay witnesses being able to provide a Court with opinions in limited circumstance.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this exeption.
In this week’s case (American Creek Resources Ltd. v. Teuton Resources Corp.) the litigants were involved in a commercial dispute.  In the course of trial  the President of the Defendant company wished to provide the Court with certain opinions.  In addressing this Mr. Justice Grauer provided the following summary of the boundaries of lay opinion evidence:
[14]         Generally, opinion evidence is inadmissible unless it is expert evidence.  There are exceptions.  Lay opinion evidence may be admissible under circumstances discussed at length in Part II of Chapter 12 in The Law of Evidence in Canada, where the learned authors state at paragraph 12.14:
Courts now have greater freedom to receive lay witnesses’ opinions if: (1) the witness has personal knowledge of observed facts; (2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity to draw the inference, that is, form the opinion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with a reasonable facility describe the facts she or he is testifying about.  But as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences.  It is always a matter of degree.  As the testimony shades towards a legal conclusion, resistance to admissibility develops.
[15]         I observe that the central issue in this case is whether the expenses claimed by the plaintiff constitute “exploration expenditures”.  The defendant takes the position that certain drill patterns employed by the plaintiff do not reflect exploration within the meaning of the agreement, so that the expenses for that portion of the drilling cannot be claimed as constituting “exploration expenditures”.  Accordingly, as stated in the excerpt quoted above, it is proper to insist that the witnesses stick to the primary facts and refrain from giving their inferences in relation to that issue. 
[16]         But that is not the only basis for such insistence.  The proffered evidence does not otherwise meet the required test.  In Graat, the Supreme Court of Canada ruled admissible lay opinion evidence about whether a person’s ability to drive was impaired by alcohol.  The witnesses in question all had an opportunity for personal observation, and the opinion was based on perceived facts as to the manner of driving and the indicia of intoxication of the driver.  These witnesses were in a better position than the trier of fact to determine the degree of impairment and could give the court real help.  The court noted at pages 837-838:
It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state.  This is because it may be difficult for the witness to narrate his factual observations individually.  Drinking alcohol to the extent that one’s ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witness to narrate separately the individual facts that justify the inference, in either the witness or the trier of fact, that someone was intoxicated to some particular extent.  If the witness is to be allowed to sum up concisely his observations by saying that someone was intoxicated, it is all the more necessary that he be permitted to aid the court further by saying that someone was intoxicated to a particular degree. …  Nor is this a case for the exclusion of non-expert testimony because the matter calls for a specialist.  It has long been accepted in our law that intoxication is not such an exceptional condition as would require a medical expert to diagnose it.  An ordinary witness may give evidence of his opinion as to whether a person is a drunk.  This is not a matter where scientific, technical, or specialized testimony is necessary in order that the tribunal properly understands the relevant facts.  Intoxication and impairment of driving ability are matters which the modern jury can intelligently resolve on the basis of common ordinary knowledge and experience.  The guidance of an expert is unnecessary.
[17]         It seems to me readily appreciable from Justice Dickson’s discussion in Graat that the contemplated parameters of admissible lay opinion evidence do not extend to the sort of circumstances I am considering here.  The application of the factors discussed in The Law of Evidence in Canada confirms this.  Those factors begin with the proposition that the evidence consists of inferences drawn from observed facts, and end with the factor that the opinion is a compendious mode of speaking that allows the witness to sum up more accurately and adequately the facts he or she is testifying about.  Thus, “intoxicated” compendiously covers a number of observed facts including such things as staggering, smelling of alcohol, being red-faced and slurring words, all of which may have formed the basis for the inference of intoxication, and all of which can be explored in cross-examination as the sort of observations commonly understood as indicia of intoxication.

Clinical Records Undermine Personal Injury Claim at Trial

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I have previously discussed the use of clinical records in a personal injury trial and some limits of their use.  Despite these limits, clinical records can be used to undermine a personal injury claim in appropriate circumstances.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Lees v. Compton) the Plaintiff was injured in a 2008 collision.  At trial the Court accepted she was injured however concluded that “the injuries…did not impact on er life to the extent that she has claimed“.  In reaching this conclusion the Court relied heavily on admissions made in various clinical records.  Mr. Justice Goepel provided the following reasons:
[68]         The more difficult question is the impact that these injuries have had on the plaintiff’s life.  The plaintiff suggests that the injuries have had a significant impact on her life.  She says she has been forced to give up sports and is no longer capable of holding down a part-time job.  The plaintiff does acknowledge that her long time goal of being a university professor remains intact but submits that her injuries will in the future likely impact on her ability to fulfill the functions of that employment.
[69]         The excerpts in the clinical records suggest that the plaintiff’s limitations are not as great as she claims.  The records clearly put in question certain of the plaintiff’s evidence and raise issues as to her credibility.  The records indicate that the plaintiff has misled the Court with respect to playing field hockey subsequent to the accident, running subsequent to the accident, and the impact of the accident on her study habits…
[73]         In the course of the trial the plaintiff admitted that the physiotherapy notes were business records and admissible pursuant to s. 42 of the Evidence Act.  By definition, that means the document was made in the usual and ordinary course of business and it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time thereafter.  The notes record information that would be of importance to a physiotherapist in formulating an appropriate treatment plan. It is not the type of note which one would expect would be wrongfully recorded.
[74]         While I acknowledge the comments of N. Smith J. in Edmundson that clinical records must be viewed with caution, in this case there are eight separate notes that are in issue.  With regard to each note, the plaintiff claims the physiotherapist is wrong and she never gave the information in question because the information sets out activities in which she did not participate and indeed could not participate because of her injuries.
[75]         On the evidence before me I cannot disregard the physiotherapist’s notes.  While it is possible that a clinical note may be in error it is highly improbable that there would be eight such errors. There is also little evidence that contradicts the notes. As noted earlier, other than Ms. Welch, the plaintiff did not call any of her contemporaries as witnesses and Ms. Welsh’s evidence was limited to her experience on one field hockey team. 
[76]         I find that the plaintiff made the statements to the physiotherapist that are recorded in the clinical notes. Those statements raise significant questions concerning the plaintiff’s credibility.  Her evidence must be viewed with great caution…
[83]         I find the plaintiff was injured in the accident.  As a result of the accident, she suffered soft tissue injuries which continued to cause her some difficulties.  The injuries, however, did not impact on her life to the extent that she has claimed.

Diminished Capacity Claims Open Door To Broad Cross Examination

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss.

Reasons for judgement were released this week by the BC Court of Appeal addressing the broad scope of permissible cross examination when a Plaintiff advances a claim for diminished earning capacity.
In this week’s case (McBryde v.Womack) the Plaintiffs were injured in various motor vehicle collisions.  Their claims proceeded to trial by Jury where only modest damages were assessed. The Plaintiffs appealed arguing numerous errors including the scope of the cross examination discussing government financial benefits that were received.  The Court of Appeal held that no overriding errors occurred at trial and upheld the Jury verdict.  In finding the broad cross examination fair game the Court provided the following comments:
[40]        Ms. Golestani contends that she should not have been cross-examined about receiving government financial assistance when immigrating to Canada or about leaving her studies to pursue the business opportunity with Mr. McBryde. Ms. Golestani initiated proceedings to recover damages from some of the respondents, and in so doing placed a number of matters in issue, including her earning capacity and her occupational goals. In my view, the cross-examination complained of was an attempt to explore these issues, and did not exceed the permissible limits of cross-examination. 
 

Prior Consistent Statements Considered in Vicarious Liability Impaired Driving Case

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases. 49 Comments on Prior Consistent Statements Considered in Vicarious Liability Impaired Driving Case

Reasons for judgement were released this week by by BC Supreme Court, Chilliwack Registry, addressing the issue of implied or express owner consent following a motor vehicle collision involving an impaired driver.
In this week’s case  (Gibbs v. Carpenter) the Defendant Carpenter was driving a vehicle owned by the Defendant Kusch.  She denied giving him permission to drive the vehicle.  He was “impaired by alcohol” when he “crossed the centre line and collided head on” with the Plaintiff vehicle.
Mr. Justice Joyce had to decide whether there was consent for him to drive.  There was conflicting evidence on this point and the Court ultimately made the call that there was no express or implied consent letting the owner off the hook.  Prior to deciding this issue the Court grappled with whether a written statement the owner gave the police was admissible.
In the aftermath of the collision the owner provided the police with a verbal statement indicating that consent for the trip was not given or if it had been the owner expected someone else to drive.  This statement was admitted into evidence   The owner provided a more fullsome written statement to the police following this.  The owner attempted to get the written statement into evidence arguing it formed part of the original statement or in the alternative that it was needed to rebut an allegation of recent fabrication. Mr. Justice Joyce disagreed and excluded the statement. In doing so the following useful summary of the law was provided:
[61]         I am unable to agree that the written statement forms part of one continuous statement, given the intervening events. It is not as though the statement was given at the scene mere minutes after the first conversation. Ms. Kusch went home, slept, spoke to her father about what had happened and it was upon his suggestion that she prepared a written statement. Ms. Kusch had the opportunity to reflect and consider what information she would include in her statement. In my view, it cannot be considered a mere continuation of the earlier oral statement.
[62]         As for the submission that the written statement should be admitted to clarify the equivocal oral statement, the trial was the opportunity to testify whether the oral statement was made or not, whether it was accurate or not, whether Constable Wright’s version of what Ms. Kusch said was complete, or whether his recall and recording of the statement were incomplete. I, therefore, do not accede to Mr. Harris’ first ground.
[63]         I am also of the opinion that the statement is not admissible as a prior consistent statement rebutting an allegation of recent fabrication.
[64]         In R. v. Stirling, 2008 SCC 10 [Stirling], Mr. Justice Bastarache reviewed the principles applicable in determining when prior consistent statements can be led to rebut an allegation of recent fabrication and how such statements, if admitted, are to be used. The context in which the issue arose in Stirling is set out in paras. 1 – 2:..
[68]         Thus, the purpose of the prior consistent statement is to remove a potential motive to fabricate and a trial judge may consider the removal of this motive when assessing the witness’s credibility.
[69]         In the recent decision delivered from the Ontario Court of Appeal, R. v. Kailayapillai, 2013 ONCA 248 at para. 41, I note that Mr. Justice Doherty adopted the phrase “motive or reason” to fabricate and discussed the importance of the timing of the statement in relation to when the motive or reason arose:
[41]      … The value of the prior consistent statement does not rest exclusively in its consistency with the evidence given by the witness at trial. It is the consistency combined with the timing of that prior statement. As the statement was made before the alleged motive or reason to fabricate arose, the statement is capable of rebutting the suggestion made by the cross-examiner that the witness’s evidence is untrue because it was fabricated for the reason or motive advanced in cross-examination. The witness’s evidence is made more credible to the extent that the asserted motive or reason advanced for fabrication has been negated by the evidence of the prior consistent statement: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7.
[Emphasis added.]
[70]         Once admitted, the trial judge may not use the prior consistent statement for the truth of its contents. At para. 11 of Stirling, Bastarache J. said:
[11]      Courts and scholars in this country have used a variety of language to describe the way prior consistent statements may impact on a witness’s credibility where they refute suggestion of an improper motive. …. What is clear from all of these sources is that credibility is necessarily impacted ? in a positive way ? where admission of prior consistent statements removes a motive for fabrication. Although it would clearly be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.
[71]         In the present case, any reason that Ms. Kusch may have to fabricate a story was clearly present at the time she prepared her type-written statement. She faced having to explain to her father, a police officer, how an inebriated young man with a learner’s permit came into possession of her car and came to be involved in a serious car accident. She may very well have appreciated that there might be insurance implications arising out of who was driving. She may also have been influenced by the advice of her father in forming her statement. The statement was not prepared prior to the existence of a reason to fabricate; it was formed afterward. In my view, it does not have any probative value and does not fall within the exception to the general rule that excludes prior self-serving statements. It is not admissible.

Admissibility of "Incompetent" Litigant Hearsay Canvassed in BC Injury Claim

Written by admin on . Posted in Civil Procedure, Uncategorized.

Adding to this site’s archived caselaw addressing points of civil procedure, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of various out of Court statements made by a Plaintiff involved in injury litigation.
In this week’s case (Saadati v. Moorehead) the Plaintiff was injured in a 2005 collision and sued for damages.  He was also involved in subsequent and previous collisions not before the Court.  Prior to trial the Plaintiff was declared “mentally incompetent” and could not testify.  In the course of the trial both the Plaintiff and the Defendant sought to introduce various pre-trial statements into evidence as exceptions to the hearsay rule.  The decision is worth reviewing in full for the Court’s analysis.  The statements considered included
1. an excited utterance at the scene of the collision
2.  statements to his GP, kinesiologist and treating specialist
3. statements to friends and family
4.  statements to an ICBC adjuster
5. paycheque stubs, pay statements, pay sheets and tax returns
6. Admissions against interest

Advance Payment Order Used to Remedy "Harsh" Reality of Trial Adjournment

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 13, Civil Procedure. 43 Comments on Advance Payment Order Used to Remedy "Harsh" Reality of Trial Adjournment

A common occurrence at Trial Management Conferences is adjournment in circumstances where it is clear the time available for trial is insufficient.   Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, recognizing that this is a “serious penalty” and that in cases where the trial estimate when set was “not unreasonable” an advance payment order may be an appropriate remedy.
In this week’s case (Van Gils v. Grandmaison) the Plaintiff was involved in a 2008 collision. Liability was admitted.  The Plaintiff alleged he suffered from Thoracic Outlet Syndrome.  The Defendant disputed the severity of the claimed injuries.  The matter was set for an eight day trial but by the time of the Trial Management Conference it became clear this was insufficient.  Mr. Justice Schultes adjourned the trial and ordered an advance of damages. In finding this was an appropriate use of the Court’s discretion Mr. Justice Schultes provided the following comments:
[5]             It is common ground that the governing the authority is the decision of Mr. Justice Macfarlane in Serban v. Casselman (1995), 2 B.C.L.R. (3d) 316 (C.A.) leave to appeal ref’d [1995] S.C.C.A. No. 120.
[6]             The often-cited passage is at para. 11:
While such orders are often made when the adjournment was brought about through the fault of one party or where the conduct of the litigation demands such an order, the rule is not restricted to matters of that kind. It is obvious that an order for advance payments should only be made in special circumstances. Obviously such an order should not be made unless the judge who makes it is completely satisfied that there is no possibility that the assessment will be less than the amount of the advance payments.
[7]              I think that the current situation meets the requirement of “special circumstances”. This trial was adjourned at the direction of the Court, pursuant to the Supreme Court Civil Rules, because it would exceed the original estimate and the trial schedule could not absorb that excess.
[8]             Based on the material that I had at the trial management conference, I would not have been able to attribute any lack of care or diligence to either counsel for the increase in trial length since it was originally set. Mr. Van Gils’ counsel advised that he had set it for eight days in the specific anticipation that, if his estimate were to be exceeded slightly, the schedule can usually still accommodate a trial of up to ten days.
[9]             When the estimate grew to potentially exceed that upper limit, he was still engaged in pruning his witness list when the defendants concluded that it was appropriate to add further witnesses. Neither approach is unusual in the course of trial preparation and neither is deserving of criticism.
[10]         The penalty for an incorrect estimate is an extremely serious one: a court-compelled adjournment at the trial management conference if the schedule cannot accommodate the new time estimate.
[11]         While this might be an appropriate deterrent for counsel who give their original estimates carelessly or who grossly underestimate the time required, it falls harshly on litigants and counsel whose original estimate was not unreasonable and whose requirement for additional time is based on changing circumstances as the trial grows closer.

Defendant Seeks To Exclude Plantiff From His Own Trial

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Short but interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting a defence application to remove a plaintiff involved in a personal injury trial from the court room while an expert witness testified.
In today’s case (Danielsen v Johnson) the Plaintiff’s cross-examination was being interrupted to accommodate an expert witness who was scheduled to testify.  The Defendant argued the Plaintiff should be excluded from the courtroom.  Mr. Justice Silverman disagreed and finding the Plaintiff could watch the expert testify and at best this may effect weight of the Plaintiff’s testimony.  The Court provided the following reasons:
[2]             There is case law that deals with the question of when parties to the proceedings should be excluded, and the leading case seems to be a 1951 case from our court of appeal, Sisson v. Olson, [1951] 1 W.W.R. (N.S.) 507, where the court says this at para. 6 of the judgment of Judge O’Halloran:
But in my judgment, a party to an action (if not dismissed therefrom) cannot escape remaining a party while the action is in progress.  It would be plainly unreasonable to attempt, not to say impossible to accomplish, to deprive him of that status at any stage of the proceedings in the action.  It must follow, in my judgment, that appellants have as much right to attend each other’s discovery examination as they have to remain in court and listen to each other’s testimony at the trial itself.
[3]             And at para. 7:
Acceptance of this conclusion does not deny jurisdiction in the court at the trial or in the presiding judicial official at any stage of the proceedings to order the physical exclusion of a party, should a violation of an essential of justice occur or be threatened, if exclusion is not directed.  What may constitute such a violation depends on the situation in each case appraised in its own atmosphere, see Bird v. Vieth (1899) 7 B.C.R. 31. 
[4]             The defence here argues that we have the situation where there is a threatened violation of an essential of justice.  What makes the case at bar different from any of the other cases which I have been referred to is three-fold:  one, this is a trial, while the precedents with which I was provided (including Sisson) dealt with an examination for discovery; second, the plaintiff is in the midst of cross-examination; and third, defence counsel has agreed to accommodate plaintiff’s counsel and, more importantly, a medical witness, by standing down the cross-examination.  If he had not agreed to that it could be that the application would be on the other foot and there would be an application to stand down the witness.
[5]             Those are important considerations, I agree, but in my view they are not enough to remove the heavy onus which is on the applicant to have the plaintiff excluded, and I rely on the principle as set out in Sissonthat parties get to be in the courtroom except in situations where an essential of justice is threatened.
[6]             Consequently, the application is dismissed.  The plaintiff may remain in the courtroom.
[7]             I would add that it remains open for the defendant to argue that the plaintiff’s evidence has in some way been affected by his presence in the courtroom, in a tangible way, while other evidence has been heard, and that this should be taken into account when assessing his evidence or aspects of it.

Clinical Records Admitted Without Authentication? – No Harm No Foul Says BC Court of Appeal

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Reasons for judgement were released last week by the BC Court of Appeal addressing, among other topics, whether a new trial should be ordered after clinical records were introduced to a jury without proper authentication.
In last week’s case (Desharnais v. Parkhurst and Romanowski) the Plaintiff was injured in two motor vehicle collisions.  He sought substantial damages as a result but a jury rejected much of his claim awarding $31,000 in damages.  The Plaintiff appealed arguing multiple errors were made at the trial level with the most significant, presumably  being the introduction of various clinical records without proper authentication.  The BC Court of Appeal held that while this was a clear error no harm was done and dismissed the appeal.   The Court provided the following reasons:
[93]         Accordingly, the records could be admitted for the truth of the fact that the statements were made, if the records were kept as part of the counsellor’s ordinary course of business, and were recorded within a reasonable time of the conversation with the plaintiff.  Similar, though not identical, considerations would be made under Ares.
[94]         There was no clear evidence of these conditions having been met.  Normally, the preconditions would be dispensed with by using a document agreement or securing admissions through a Notice to Admit.  I have not been able to find anything in the record to suggest that formal proof was dispensed with.  Rather, in this case the plaintiff objected to their admission.
[95]         In those circumstances, it seems to me that counsel seeking to admit the records as business records under common law or statute would have to tender proof of the preconditions for admissibility:  Cunningham v. Slubowski, 2003 BCSC 1854.  This was not done here. 
[96]         Accordingly, I agree with the plaintiff that the trial judge erred in concluding that the records were admissible without first concluding that there was proof of the preconditions under common law or statute.  Plaintiff’s counsel disputed that the records qualified as business records.  Even if there were little or no substance to his position, the effect of his objection was to require the defence to lead the evidence to comply with the pre-conditions for admissibility.
[97]         Having reviewed the appeal record, however, I do not see this error as sufficient to warrant intervention from this Court.  Had the records not been admitted, the information contained in them would have nonetheless been placed before the jury, as the content of the records was summarized in the report of the plaintiff’s expert, Dr. Rami Nader.  Dr. Nader’s summary of the records included that the plaintiff complained about stress stemming from his relationship with two women and that he suffered a back injury following the accident in his driveway.  Plaintiff’s counsel had the report admitted and sought no limiting instruction on the use of the report.
[98]         Further, the trial judge’s instruction that the records were an example of a prior inconsistent statement was one of several prior inconsistent statements made by the plaintiff.  The trial judge also pointed out inconsistent statements made under oath.  The plaintiff’s own counsel referred to the plaintiff as “a poor historian” in his closing submissions.  On the whole, it seems unlikely that the assessment of the plaintiff’s credibility was significantly influenced by the statements in the records.
[99]         The jury was also unlikely, given the amount of medical evidence, to place much weight on the records suggestion that the plaintiff was symptomatic before the first and second accident.  Further, this information was before the jury by virtue of the plaintiff’s expert’s report.
[100]     Based on the above, I do not see this error as warranting intervention from this Court.

How Do You Restore A Trial Date if You Failed to File a Trial Certificate?

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 12, BCSC Civil Rule 22, Civil Procedure. 127 Comments on How Do You Restore A Trial Date if You Failed to File a Trial Certificate?

The BC Supreme Court Rules require a trial certificate to be filed at least 14 days before a scheduled trial date.  Failure to do so requires the matter to be removed from the trial list ‘unless the court otherwise orders‘.  Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, addressing the framework which permits the Court to restore a trial date after if it has been removed from the trial list.  In short the Court relied on its power under Rule 12-1(9)(b) to “fix the date of a trial proceeding” to remedy the problem.
In this weeks case (Knowles v. Lan) the Plaintiff was injured in a collision.  Prior to trial ICBC sought to have the matter adjourned but the application was dismissed.  The Plaintiff’s lawyer then forgot to file a trial certificate and the matter was removed from the trial list.  Mr. Justice Halfyard restored the trial date and in doing so provided the following reasons addressing the proper framework for such a remedy:
[24]         The first question is whether Rule 12-4 (5) gives the court power to restore a proceeding to the trial list, after it has been removed for non-compliance with Rule 12-4 (2). I would say firstly that, because of the mandatory wording in Rule 12-4, the filing of at least one trial certificate is a necessary condition for a trial to proceed. As a consequence, I do not think the court could dispense with the filing of any trial certificate, but could only grant leave to file it less than 14 days before trial.
[25]         In my opinion, a party who seeks to have a trial restored to the trial list must first obtain leave to file a trial certificate “late,” under Rule 22-4 (2). If such leave is granted, and a trial certificate is filed in accordance with the order, that filing would not have the effect of restoring the trial to the trial list from which it had been removed. Could the court make such a restoration order, under Rule 12-4 (5)?
[26]         In my opinion, Rule 12-4 (5) should be read so as to include the additional underlined words, as follows:
(5)  Unless the court otherwise orders, if no party of record files a trial certificate in accordance with sub-rule (2), the trial must be removed from the trial list.
[27]         In my view, Rule 12-4 (5) is designed to prevent an action being removed from the trial list for failure to file a trial certificate as required by subrule (2). It does not state that, if a trial has been removed from the trial list, the court may restore that trial to the trial list. Nor do I think that such a power is implicit in that subrule. In order to preserve a trial date by invoking this Rule, I think the application and the order would have to be made before the 14 day deadline. That was not done here, and so this rule cannot be relied upon…
[29]         It may be that Rule 1-3 provides inherent jurisdiction to make an order restoring this action to the trial list for March 4, 2013. But it seems to me that Rule 12-1 (9) provides specific authority to do this. Subrule (9)(b) states:
(9)  The court may
. . .
(b) fix the date of trial of a proceeding,
. . .
[30]         When this action was struck off the trial list, there was no longer any date scheduled for the trial. The subrule I have just referred to does, in my opinion, empower the court to fix a date for the trial of this proceeding which coincides with the previously – scheduled trial date of March 4, 2013. I would rely on that subrule in making the order to reinstate this action for trial on March 4, 2013.
[31]         Authority might also be found in Rule 22-7(2)(e), which states in relevant part as follows:
(2)  . . .  if there has been a failure to comply with these . . . Rules, the court may

. . .

(e) make any other order it considers will further the object of these . . .  Rules.
[32]         In my opinion, the reasons I have outlined support the orders that I made on February 27, 2013.

Litigants Prohibited From Self-Recording Examinations For Discovery

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Adding to this site’s archived posts relating to examinations for discovery under the BC Supreme Court Rules, reasons for judgement were released this week addressing whether a party may self-record an examination for discovery.  In short the answer is no.
In this week’s case (Rassaf v. SNC-Lavalin Engineers and Constructors Inc.) the Plaintiff indicated he wished to record his own discovery.  The Defendant brought an application prohibiting him from doing so.  In granting the application Mr. Justice Goepel provided the following reasons:
[6]             A somewhat similar situation arose concerning the power of parties to videotape examinations for discovery. In Ramos v. Stace-Smith (2004), 24 B.C.L.R. (4th) 333, Mr. Justice Fraser allowed an examination to be videotaped.
[7]             That decision was subsequently followed in Ribeiro v. Vancouver (City), 2004 BCSC 105. The Ribeiro case was appealed. The appeal judgment is found at 2004 BCCA 482. On appeal, Madam Justice Southin held that the decision in Stace-Smith was wrongly decided and similarly the chambers judgment in Ribeiro, which had followed Stace-Smith, was similarly wrongly decided. In reaching her decision, she noted that there was no provision in the Rules for an order for videotaping. She said at para. 3:
There is no provision in the Rules of the Supreme Court of British Columbia for the order which was pronounced in this case. Since time immemorial, that is to say since examinations for discovery were first permitted in this province which I think now is about 80 or 90 years ago, they have never been filmed by any method at all. If they are to be, there must be a change in the Rules of the Court to permit or authorize such a practice, or, in my view, there must be at least a practice direction emanating from the whole of the Supreme Court of British Columbia on the point. In making the latter remark, I am not saying that a practice direction would necessarily be valid in such circumstances. Matters of practice and procedure in the court below must be governed by its Rules, and those Rules must be duly enacted under theCourt Rules of Practice Act. It is certainly open to the Lieutenant Governor in Council to permit what Mr. Potts says is a very good idea but she has not done so. It is not appropriate for a single judge of the court below to engage in matters of practice and procedure in what I call judicial individualism. The course of the court below is the law of the court and the course has never been to engage in such a practice.
Those words apply in these circumstances.
[8]             It has not been the practice that individual parties are allowed to record examinations for discovery. There is no provision for same in the Rules. In these circumstances it would not be appropriate for me to allow such to occur. Accordingly, I am granting the defendant’s order, and the plaintiff will be prohibited from recording by any means his examination for discovery.