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Discovery Evidence and the Principled Exception to the Hearsay Rule

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.


As previously discussed, one of the limits of examination for discovery evidence at trial is that it is generally only admissible against the person being examined.   Rule 12-5(46) permits the Court to make exceptions to this restriction in appropriate circumstances.  Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, addressing one such exception.
In the recent case (Yamakami v. Whittey) the Plaintiff was injured in an intersection crash.  Fault was contested.  In the course of the lawsuit the Defendant was examined for discovery.  Prior to trial the Defendant died.
The Defendant’s lawyer wished to rely on his examination transcript at trial in support of the Defence case.  Mr. Justice Fitch allowed this finding it was necessary to do so.  Interestingly, although the Court admitted the evidence finding that an examination for discovery created the necessary safeguards to meet the principled exception to the hearsay rule, the Court ultimately placed little weight on the Defendant’s version of events.  In allowing the evidence to be introduced Mr. Justice Fitch provide the following reasons:
[3] Mr. Whittey, who was 81 years of age when the accident occurred, died before trial but after his examination for discovery was completed on May 11, 2010. Counsel for the defendants applied at the outset of the trial to have his examination for discovery admitted in evidence for the truth of its contents under the principled approach to the hearsay rule. The application was opposed. As Mr. Whittey was deceased at the time of trial, the necessity criterion was met. Counsel for the plaintiff argued that despite the existence of process-based substitutes compensating for the loss of an ability to engage in contemporaneous cross-examination of the defendant (the oath, cross-examination and the existence of a verbatim record of the examination for discovery) the evidence Mr. Whittey gave on the examination for discovery was so inherently unreliable that the test of threshold reliability at the admission stage was not met. In oral reasons for judgment delivered November 4, 2011, I concluded that the process-based compensators present in this case provided a satisfactory basis for evaluating the reliability of the evidence in issue. Accordingly, I exercised my discretion to admit the evidence but made clear that it was for me, at the end of the day, to determine the ultimate or actual reliability of the evidence and the weight it should be accorded.

Pre-Litigation Police Disclosure Request Denied

Written by admin on . Posted in BCSC Civil Rule 17, BCSC Civil Rule 2, Civil Procedure. 119 Comments on Pre-Litigation Police Disclosure Request Denied

When a lawsuit gets underway in the BC Supreme Court the Rules of Court give litigants significant powers to force disclosure from opposing parties and even non-parties.  If a formal lawsuit has not been started the  Court’s power to order disclosure becomes far more limited.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court, Chilliwack Registry.
In last month’s case (Dhindsa (Re)) the applicant was injured in a 2010 hit and run collision.  The police investigated the matter.  The applicant applied for an order compelling disclosure of the police file.  Orders such as these are routinely granted by consent once formal lawsuits are underway.  In this case no lawsuit was commenced.  The applicant’s lawyer argued that the Court could make the disclosure order using a remedy known as an “equitable bill of discovery“.
Mr. Justice Grist held that even if the Court did have such a right it was not appropriate to exercise on the facts of this case.  In dismissing the application the Court provided the following reasons:

[4] Counsel for Mr. Dhindsa has cited Kenney v. Loewen (1999), 64 B.C.L.R. (3d) 346 (S.C.) [Kenney], a decision of Madam Justice Saunders which references Glaxo Wellcome PLC v. Canada (Minister of National Revenue), 1998 CarswellNat 1388 (F.C.A.), 162 D.L.R. (4th) 433 [Glaxo]. The Glaxo case before the Federal Court of Appeal in turn cited the English House of Lords decision in Norwich Pharmacal Co. v. Commissioners of Customs and Excise, [1973] 2 All E.R. 943; [1974] A.C. 133 (H.L.).

[5] These decisions all recognize that an antique form of action for a remedy known as an equitable bill of discovery remains known to the law and, in appropriate cases, can be the sole remedy sought in a civil action.

[6] In short form, the bill of discovery would require a third party to reveal the identity of a person the plaintiff says has done them wrong. In Kenney, the plaintiff indicated that he had suffered damages as a result of a slander. He did not know the source of slander and the action for the bill of discovery was designed to force the defendant to reveal the person’s identity. At para. 33 ofKenney, Madam Justice Saunders listed the circumstances under which the remedy would be granted:

(a)        the plaintiff must show that a bona fide claim exists against the unknown wrongdoer;

(b)        the defendant must establish that the information is required in order to commence an action against the unknown wrongdoer, that is, the plaintiff must establish that disclosure will facilitate rectification of the wrong;

(c)        the defendant must be the only practicable source of the information;

(d)        there is no immunity from disclosure;

(e)        the plaintiff must establish a relationship with the defendant in which the defendant is mixed up in the wrongdoing. Without connoting impropriety, this requires some active involvement in the transactions underlying the intended cause of action.

(f)         disclosure by the defendant will not cause the defendant irreparable harm; and

(g)        the interests of justice favour granting the relief.

[7] In the affidavit filed in support of this action counsel for Mr. Dhindsa says at numbered items 6-8:

6.         I have not filed a Notice of Civil Claim on behalf of my client and require production of the Police File by the Surrey RCMP to ascertain the identity of the potential defendant(s) and whether or not there is sufficient evidence to ground a claim of negligence.

7.         If there is sufficient evidence to found a negligence action, I require the Police File to understand what the objective witness accounts of the Accident are so as to efficiently and correctly plead my client’s case, represent my client at trial and represent my client during settlement negotiations.

8.         I do not want to commence an action without first obtaining the Police File in order to adhere to Rule 1-3 of the Civil Rules of Court.

[8] Assuming for the moment that the application for the bill of discovery brought by way of a requisition satisfies Rule 2-1(2)(a) and Rule 17-1, the application is nonetheless deficient in providing the circumstances indicated in Kenney under sub-paragraphs (a) and (e). The affidavit indicates that Mr. Dhindsa was injured in the motor vehicle accident, but does not give any details to suggest the other driver was negligent. In fact, investigation of the circumstances is listed as one of the reasons for wanting to have access to the police file. Further, there is nothing to indicate that the Surrey RCMP are “mixed up in the wrong doing,” or were actively involved in, “the transactions underlying the intended cause of action.”

[9] The right to pre-action discovery may have merits beyond the strictures of an action for a bill of discovery, however, that form of proceeding is not applicable on the circumstances of this application.

Secret Tape Recording Deemed Admissible in BC Civil Lawsuit

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From time to time BC Courts struggle with the issue of whether evidence obtained through secret tape recording is admissible in a civil trial.  Reasons for judgement were published yesterday by the BC Supreme Court, Vancouver Registry, addressing this topic.
In yesterday’s case (Lam v. Chiu) the Plaintiff sued the Defendant for damages based on unjust enrichment.  Prior to trial the Plaintiff had a conversation with the Defendant that he secretly recorded.  In the course of the discussion the Defendant arguably acknowledged the alleged debt.
The Plaintiff sought to introduce the secret recording at trial.  The Defendant opposed arguing secretly recorded evidence is too prejudicial to be admitted at trial.  After thoroughly canvassing several authorities addressing this area of the law Madam Justice Gray found the evidence should be admitted.  In doing so the Court provided the following reasons:

[25] So I am going to summarize the law I have referred to by saying that there is a discretion in the court to exclude evidence where the prejudicial effect outweighs the probative value. There are cases where the court has commented on the practice of recording household conversations between family members and described that as odious. The court has also referred to illegal tape-recording, that is, tape-recordings when no party to the conversation had consented to it being recorded.

[26] The case before me is not a family case. It is not a case where custody is in issue and it is not a case where the recording took place in the household of a family. The recording, in fact, took place primarily on the street outside Ms. Chiu’s workplace. It is not a case where there is an ongoing relationship of trust between parents.

[27] This is a situation where the relationship between Mr. Lam and Ms. Chiu has broken down, and there is no need for them to have an ongoing relationship except to resolve the lawsuit before me. It is not a case of a large volume of material. It is a case of one recording. It is not a case where the recording is being put forward to show a general practice of how someone interacts with their children as in the Seddon case. It is a case where there is an allegation about a narrow point, that is, discussion about the existence of a loan.

[28] I will summarize the factors in this case as follows. First, with respect to probative value, I will say that I have to refer to it for the purposes of considering admissibility and, at this stage, I am not weighing the evidence or making any comment about what weight, if any, should be given to the evidence. In my view, there may be some probative value to the tape-recording. There is some concern about the statement by Ms. Chiu, that, “But I tell you, you want to have the $100,000. No way because you treat me like that. That’s pay for it.”  There may also be other utterances by Ms. Chiu giving rise to concern, but that is the one that is most prominent, in my view.

[29] I also consider the probative value in contrast with what the situation would be if the recording is not admitted. Mr. Lam could testify that he met with Ms. Chiu, demanded the payment of the loan, that she did not deny that it was owing, and she said she had no intention of repaying it. That summary might well be accurate, but it would not give the full flavour of the conversation which is available from considering the recording and the transcript. So there is some probative value to having the full conversation reported as accurately as it can be.

[30] In terms of prejudice, there clearly is unfairness when one party knows that a conversation is being tape-recorded and the other party does not. That is clear on the evidence and can be taken into account on considering what, if any, weight the evidence ought to be given. Mr. McMillan argued that the context was prejudicial. However, Ms. Chiu can supply any more evidence she chooses about the context of the discussion including any other background and any other concerns about the language.

[31] The matter which gave me the greatest concern was the question of the impact on the administration of justice of permitting the admission into evidence of a surreptitious recording. I am not sure that I can characterize this surreptitious recording as odious. That was a term used by Mr. Justice Thackray and embraced by other judges, but when they were referring to recordings in a home with an ongoing parental relationship and, as I have said, that does not apply here. Whether it is odious or not, the recording was certainly unfair. It is not criminal because Mr. Lam knew the recording was being made. As I have said, the recording was staged and therefore unfair, but that is apparent from the recording.

[32] This is a not a clear case. In my view, there is some probative value to admitting the full recording, and the concerns about prejudice are not sufficiently significant that the recording should be excluded from evidence, primarily because any concerns about them are clear on the recording itself.

[33] So my ruling on the voir dire is that the recording is admissible.

Some Threats OK, Others Not So Much in Settlement Negotiations

Written by admin on . Posted in Civil Procedure. 49 Comments on Some Threats OK, Others Not So Much in Settlement Negotiations


In BC the law provides wide protection over confidential settlement discussions to permit parties in a lawsuit to have full and frank resolution attempts.  Typically settlement discussions made on a ‘without prejudice’ basis are protected by the law of settlement privilege and are not admissible in a subsequent trial.
There are exceptions to this general rule, however, and one such exception relates to communications with”threats of an egregious nature“.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, demonstrating this.
In yesterday’s case (Monument Mining Limited v. Balendran Chong & Bodi) the parties were involved in a defamation lawsuit.  In the course of the lawsuit various settlement offers were exchanged.  The Plaintiff sought to introduce these into evidence.  The Defendants opposed arguing these were protected by settlement privilege.  Mr. Justice Goepel concluded the letters contained egregious threats and therefore privilege was lost.  In admitting the letters into evidence the Court provided the following reasons:

[25] In Evergreen Building Ltd. v. IBI Leaseholds Ltd., 2006 BCSC 1190 at para. 16, 58 B.C.L.R. (4th) 294, Kelleher J. said at para. 16:

[16]      Privilege is lost not by making a threat, but by threatening to do something of an egregious nature. For example, a threat to commence an action or to bring a motion does not destroy the privilege attaching to a settlement communication. On the other hand, a threat to commit perjury is not privileged.

[26] I find that the July 12 Letter does contain threats of an egregious nature. The July 12 Letter warns that if the settlement proposal is not accepted, the Clients may  bring claims against Monument, Avocet and their respective directors alleging fraud and other misdeeds and may inform the AIM, the TSX and Haywood Securities Inc. of the alleged fraudulent conduct. Such actions could be devastating for a publically traded company.

[27] Monument and Avocet were not parties to the D8 Litigation.  The reservation of rights set out in the July 12 Letter served no legitimate settlement purpose. The intent of the reservation of rights was to put improper pressure on entities not involved in the D8 Litigation. The threat is of such character that the public interest in its disclosure outweighs the public interest in protecting settlement communications.  Settlement privilege does not extend to the July 12 Letter.

[28] In the result, the Settlement Letters are admissible and will be marked as exhibits 37, 38 and 39 respectively.

Emergency Driver Found Fully at Fault for Intersection Crash; Abuse of Process Discussed

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 55 Comments on Emergency Driver Found Fully at Fault for Intersection Crash; Abuse of Process Discussed


The BC Motor Vehicle Act provides the RCMP and other drivers of ‘emergency vehicles‘ the right to speed and run red lights and stop signs.  This right, however, is not absolute and cannot be exercised without care to other motorists.   If an emergency vehicle operator is careless in the exercise of their emergency powers they can be liable for a resulting collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In today’s case (Haczewski v. British Columbia) the Plaintiff was killed in a 2007 motor vehicle collision.  His vehicle was struck in an intersection.  He entered on a green light.  At the same time an RCMP vehicle was approaching with “her emergency lights and siren” on.  She entered against the red light at high speed and the collision occurred.
At trial the Defendant agreed she was careless and contributed to the collision but argued the Plaintiff was also partly to blame.  Mr. Justice Grauer rejected this argument and found the Defendant fully at fault.  In doing so the Court provided the following reasons:

[12] No statute need be cited for the general proposition that a vehicle entering a controlled intersection with a green light has the right-of-way over vehicles facing the red light.  But is this still the case when the vehicle with the red light is a police car responding to an emergency with its lights flashing and siren sounding?  The answer is:  it depends.

[13] The Motor Vehicle Act provides certain privileges to emergency vehicles, including the limited right to proceed through a red light without stopping:…

[14] The use of those privileges is governed by the Motor Vehicle Act Emergency Vehicle Driving Regulation, B.C. Reg. 133/98…

[16] Thus the statutory privileges granted by the Motor Vehicle Act’s section 122 exemption are subject always to balancing the exigencies of the emergency with the risk of harm arising from the operation of the vehicle.  In particular, the driver of any emergency vehicle exercising those privileges who approaches or enters an intersection must slow to a speed consistent with reasonable care.

[17] The Motor Vehicle Act deals further with right-of-way in section 177:

177 On the immediate approach of an emergency vehicle giving an audible signal by a bell, siren or exhaust whistle, and showing a visible flashing red light, except when otherwise directed by a peace officer, a driver must yield the right of way, and immediately drive to a position parallel to and as close as possible to the nearest edge or curb of the roadway, clear of an intersection, and stop and remain in that position until the emergency vehicle has passed…

[22] An article included as an appendix to the manual, entitled Rules of the Road: Some Perspectives on Emergency Driving, contained this recommendation:

8.         Come to a complete stop at all controlled intersections (e.g. red lights, stop signs) where you would not have the right-of-way without warning equipment.

Most accidents of any kind, but especially those involving emergency vehicles on emergency calls, occur at intersections.  The practice of stopping at intersections has not appreciably hurt my agency’s response times, although it has caused some shortening of brake life.  But faithful adherence to it has resulted in countless instances in which vehicles would otherwise have been broadsided by motorists who either insisted on their right-of-way or did not perceive the warning equipment.

[23] As a result of this accident, this recommendation has, as I understand it, now become RCMP policy.  At the time of the accident, the policy for an officer approaching a controlled intersection was to slow sufficiently, and to stop if necessary, in order to ensure that it was safe to proceed through the intersection, consistent with section 6 of the Regulation…

[46] On all of the evidence, I have no difficulty in concluding that Constable Kostiuk failed to exercise the degree of care required of a reasonable police officer, acting reasonably and within the statutory powers imposed upon her, in the circumstances she faced that night (see Doern v. Philips Estate (1994), 2 B.C.L.R. (3d) 349 (S.C.) at para. 69, aff’d (1997), 43 B.C.L.R. (3d) 53 (C.A.)).

[47] As she headed up Kingsway in response to what she reasonably believed to be an emergency, Constable Kostiuk significantly exceeded the speed limit.  On a quiet night with little traffic, that was justified.  But circumstances changed when she approached the intersection with Royal Oak, a main street, facing a red light.  She was not familiar with the intersection, and visibility was limited.  She ought not to have entered it against the red light without first taking adequate steps to ensure that she could do so safely.  She failed to do so.  Reasonable care required her to slow right down before proceeding into that intersection, in order to ensure that it was in fact clear, and that she could enter it without risk of harm to the public.  Instead, she accelerated into the intersection from what was already a high speed.  In those circumstances, it was impossible for her to have any confidence that she could proceed safely, and the collision was the result.  Such action was in no way justified by the exigencies of the emergency to which she was reacting.

In addition to the above, this decison is also worth reviewing for the application of the ‘abuse of process’ doctrine following a motor vehicle act conviction.

In today’s case the RCMP officer was charged criminally with dangerous driving causing death.  She eventually plead guilty to careless driving under the motor vehicle act.  The Plaintiff argued it was an abuse of process to dispute civil liability in these circumstances.  Mr. Justice Grauer disagreed and provided reasons at paragraphs 154-160 setting out his view of why a guilty plea to careless driving should not be an absolute barrier to subsequently denying civil liability.  It is worth noting there is some inconsistency in this area of the law.

More on the Broad Scope of Examination for Discovery

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

As previously discussed, BC Courts take a broad view of relevance when it comes to examination for discovery.  Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, further addressing this topic.
In the recent case (Burgess v. Buell Distribution Corporation) the Plaintiff suffered “very serious personal injury” in a motorcycle accident.  He was operating a motorcycle with a side-car when he was injured. He sued the manufacturer and other parties.  At the Defendant’s discovery the Plaintiff wished to canvass standards the Defendant had for two wheeled motorcycles (ie- motorcycles without a side-car).  The Defendant objected arguing these questions are not relevant because a motorcycle with a side-car is a “discrete three-wheeled vehicle with handling characteristics not shared by a two-wheeled vehicle.”
The Plaintiff brought application compelling answers to the contentious questions.  Mr. Justice Cullen granted the application and in doing so provided the following reasons confirming the broader scope of relevance at the discovery stage:

[10] The parties agree that the operative rule is Rule 7-2(18)(a) which reads as follows:

(18)      Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action ….

[11] The plaintiff takes the position that it is the pleadings which determine the issues and hence the question of relevance citing the decision of the British Columbia Court of Appeal inCominco Ltd. v. Westinghouse Canada Ltd., [1979] B.C.J. No. 1963.

[12] The plaintiff says the Court on an application such as this ought not to consider evidence in rendering a decision as to do so prejudges the effect of the examination for discovery and usurps the role of the trial judge.

[13] The defendant on the other hand says the only way to determine relevance within the meaning of the Rule is to consider what the available evidence is likely to establish. The defendant says if I consider the evidence of its expert it will establish that the questions concerning the characteristics of a two-wheeled vehicle are simply not relevant to the characteristics of a three-wheeled vehicle and should not be permitted under the Rule.

[14] The plaintiff on the other hand submits that even if I do consider the evidence the question is simply not so clear cut that I could make a determination without effectively usurping the role of a trial judge.

[15] As I see it, this is not a case where it could be said that on the pleadings there is no relevance to the questions being posed. As Seaton J.A. pointed out in West Coast Transmission:

It is not appropriate to plead evidence and the information respecting these other cables is essentially evidence from which the Court will be asked to conclude that the defendants knew or ought to have known of a danger. The respondents relied upon an affidavit to the effect that evidence of non-tech cable would not be a guide to the propensities of tech cable. The respondents refused to answer questions on that subject. I do not think it appropriate to conclude on affidavit evidence that a proposition is unsound and exclude the area from the examination. That is what was done here. It was said then that before there could be examination with respect to cable other than tech cable the appellant would have to establish that the other cable was similar. I know of no procedure whereby a party can prove an aspect of his case before discovery. The decision on similarity ought to be made at trial, not before trial, and particularly not before discovery.

[16] In my view, on that basis the order sought should go. If I am wrong in that however, I am still not satisfied having considered the evidence put before me that there is not some relevance to the questions being posed. There is a difference between the views of the experts as to the possible cause of the accident and whether it resides exclusively in the characteristics of the vehicle as a three-wheeled vehicle or whether it has its source in the component parts of the two-wheeled vehicle. And that is a question essentially for the trial judge.

[17] In his affidavit of December 12, 2011, the plaintiff’s expert deposes as follows in para. 6:

6.         The steering assembly of the Harley-Davidson motorcycle sidecar is identical to that found on the solo motorcycle. The underlying steering assembly response of the base solo motorcycle will behave in the same manner as that same unit will respond when attached to the motorcycle sidecar. This is because they are exactly identical mechanical devices. What will be different is the level of the response of the solo motorcycle vehicle compared to the level of response of the motorcycle sidecar vehicle and the path each vehicle takes due to shaking (oscillations) of the steering assembly once that shaking is initiated.

[18] While I do not in any way wish to be taken as resolving the issue which undoubtedly is a very complex one, I am simply not able to say that the characteristics of some components of the two-wheeled vehicle as revealed by the questions posed may not be germane to the effect upon the three-wheeled vehicle at issue in this lawsuit and, accordingly, for those reasons, I will grant the application of the plaintiff.

Adverse Inferences When Parties in an Injury Claim Fail to Testify

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Further to my previous posts addressing this topic, two sets of reasons for judgment were released recently by BC Courts addressing the law of adverse inference in the failure of parties testifying in their own injury claim.
In a recent Court of Appeal decison (O’Connell v. Yung) the Plaintiff suffered a serious brain injury as a result of a 2007 tractor-trailer collision.  The consequences of her injury caused her to “lack insight into her difficulties”.  At trial the Plaintiff did not take the stand with counsel explaining that this choice was made because “she was an unreliable historian and could not add anything to the truth of the evidence she would be giving”.  The Plaintiff’s case instead consisted of medical evidence and that of collateral witnesses.
The Plaintiff was awarded significant damages at trial.  The Defendants appealed arguing the damage awards were too high and further that the trial judge erred in not drawing an adverse inference from the Plaintiff’s failure to testify.
The Court of Appeal, while somewhat reducing the damages awarded for cost of future care, found that no error was made in not drawing an adverse inference.  Madam Justice Kirkpatrick provided the following reasons:

[16] I first observe that this Court stated in Jones v. Trudel, 2000 BCCA 298 at para. 34, 185 D.L.R. (4th) 193, that the failure to address the question of whether an adverse inference should be drawn is not, in and of itself, reversible error: per Southin J.A. Mr. Justice Lambert agreed that the trial judge made no reversible error and stated, at para. 52:

In particular, it is my opinion that the trial judge was neither obliged to draw an adverse inference from the plaintiff’s failure to call the witnesses named by the appellants, nor to give reasons for not doing so. If a trial judge is asked to draw an adverse inference from a failure to call a particular witness, then whether the trial judge ought to deal with that point in her reasons must depend on an assessment of the significance of the point in the case, and on the trial judge’s concern to deal with all the points that might be thought to be significant by the losing party. I do not think that any more general rule than that is desirable.

[17] The application of that general rule is dispositive of this ground of appeal. I will nonetheless address the arguments raised in this case as they are important to the ultimate outcome of the appeal…

[31] In my opinion, the adverse inference advocated by the appellants cannot fairly be drawn in the circumstances of this case. First, the defendants at trial did not ask that an adverse inference be drawn. Second, the medical evidence supports the judge’s conclusion that Ms. O’Connell had limited ability to testify. Further, the evidence suggests that had Ms. O’Connell testified she may have left a false impression as to the extent of her severe brain injury. As Dr. Hirsch noted, [AB V. 4, p. 573] “On the surface, she looks fine and she has intact social skills, however, she would not be able to look after her needs properly.” Similarly, Dr. Anderson testified that Ms. O’Connell is “easily influenced by others” and tends to say whatever they want to hear. In my view, Ms. O’Connell’s limited ability to testify would have complicated rather than aided in the assessment of her claims.

[32] The judge recognized the difficulty presented by Ms. O’Connell not testifying but accepted the explanation given by her counsel. Her decision would obviously be informed by her assessment of all the evidence.

[33] In these circumstances, I consider the explanation given to be adequate and would reject the submission that the judge erred in not drawing an adverse inference from Ms. O’Connell’s failure to testify.

Also of note is a recent BC Supreme Court decision (McIlvenna v. Viebig) wherein the Plaintiff was seriously injured in a collision with a vehicle.  At trial neither the Plaintiff nor the Defendant testified.  Both parties asked the Court to draw an adverse inference from the opposing side’s failure to testify.  Mr. Justice Sigurdson refused to draw such an inference and in doing so set out comprehensive reasons addressing this area of the law at paragraphs 68-74 of the reasons for judgement which are worth reviewing in full.

Timing of Plaintiff Testimony in a Personal Injury Lawsuit

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While BC has no formal requirement addressing when (or even if) a Plaintiff needs to take the stand in the prosecution of a personal injury claim, the prevailing practice is for the Plaintiff to testify first.  Deviating from this practice comes with a downside as explained in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Yeung v. Dowbiggin) the Plaintiff was involved in four separate motor vehicle collisions.  The Plaintiff’s trial lasted over two weeks.  She was one of the last witnesses to testify.  Madam Justice Humphries highlighted the following practical difficulty which arose due to this decision:
[27] Since the plaintiff was one of the last witnesses called and was in the courtroom very rarely prior to her testimony, it was difficult to assess the evidence about the effects of the accidents as I listened to the various witnesses.  I had no idea who the plaintiff was, had no sense of her, and had heard no evidence about the accidents as I listened to all these witnesses.  I do not know if this was a tactical decision or whether it was necessitated by schedules, but it meant the evidence I heard was all without context.

$50,000 Non-Pecuniary Damage Assessment for Chronic STI's; Adverse Inference Discussed

Written by admin on . Posted in Civil Procedure, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 46 Comments on $50,000 Non-Pecuniary Damage Assessment for Chronic STI's; Adverse Inference Discussed

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries arising from a motor vehicle collision.
In last week’s case (Milburn v. Ernst) the Plaintiff was operating a motorcycle when it was rear-ended by the Defendant’s vehicle.  The impact “resulted in the motorcycle becoming embedded in the gill of the (Defendant’s vehicle); to the point that only half of the motorcycle could be seen protruding from the front of the car“.
The Plaintiff, although he missed little time from work, suffered soft tissue injuries that were expected to pose long term limitations.  In assessing non-pecuniary damages at $50,000 Madam Justice Fitzpatrick made the following findings and provided the following reasons:

[96] After having considered the evidence from Mr. Milburn, the evidence of his independent witnesses and the medical evidence referred to above, I find as a fact that Mr. Milburn suffered the following injuries as a result of the accident:

a)       he was bruised in the pelvic region, he had wrist pain and he had some cognitive dysfunction and sleep disturbance, all of which were resolved shortly after the accident;

b)       he had some chest pain in the fall of 2007 arising from his temporary use of crutches after the knee surgery;

c)       he had severe pain in his neck, back and shoulder, all of which were largely resolved by December 2007;

d)       the disc bulges found to be present in Mr. Milburn’s spine were not caused by the accident but were rendered symptomatic as a result of the accident; and

e)       he continues to experience discomfort and mild pain in his neck and back from time to time, which increases to the point of severity depending on his level of physical activity and his level of physical fitness…

[105] I accept the evidence of Mr. Milburn that he enjoyed an active and physical life before the accident. In the aftermath of the accident, he experienced significant pain and discomfort relating to his injuries at that time which, for the most part, were resolved by December 2007.

[106] Since the accident, he has struggled to deal with the back and neck pain that arises from time to time, particularly given his employment, which is physically demanding and at times, can be quite physically demanding. He has not, however, required prescription medicine to deal with that, which speaks to the severity of the pain that he experiences from time to time. In addition, his doctors have recommended that with a proper exercise regime and with care taken in the manner of lifting and other physical activities, he should be able to minimize the difficulties that he might otherwise have. This recommendation appears to have been taken up by Mr. Milburn in that he is now regularly exercising on his own.

[107] His need of physiotherapy for some years now has been infrequent, a sign that the need for more formal treatment has not been great, despite what he describes as “flare-ups” in his condition.

[108] Based on the medical evidence of Dr. Badii, which I accept, his condition is not expected to materially improve from this time forward and as such, it is to be expected that Mr. Milburn will continue to suffer some pain in the future.

[109] In addition, I find that the accident has resulted in Mr. Milburn abandoning some of his recreational activities, such as kickboxing, snowboarding and rollerblading. In addition, some of his favourite activities have been curtailed. His love and enjoyment of motorcycling is now somewhat limited to the extent that he has to stop frequently while on long rides. In addition, acting roles with stunt assignments are no longer open to him, an activity that he particularly enjoyed although such roles were limited.

[110] I accept that the accident has also affected his personal life in that he has some pain accomplishing more physically demanding tasks around the home. I note, however, that he continues to enjoy what can only be called very physical activities, and no doubt more enjoyable activities, such as weightlifting, ATVing, scuba diving, snorkeling and horseback riding.

[111] I find that Mr. Milburn is entitled to non-pecuniary damages in the amount of $50,000.

This case is also worth reviewing for the Court’s discussion of the ‘adverse inference‘ principle.  In the course of the lawsuit the Plaintiff obtained two privileged medico-legal reports.  The Plaintiff maintained the claim of privilege through trial and did not introduce these reports into evidence.  The Defendant argued that an adverse inference should be drawn.  Madam Justice Fitzpatrick disagreed and provided the following reasons:

[87] The defence also points out that in Mr. Milburn’s list of documents, he listed two privileged medical-legal reports dated June 11 and 12, 2010. These were commissioned by Mr. Milburn’s counsel but were never served or presented at trial. The defence submits that an adverse inference should be drawn that the evidence in those reports would be contrary to Mr. Milburn’s case. Cases cited in support include Buksh v. Miles, 2008 BCCA 318 at paras. 30-35, 296 D.L.R. (4th) 608; Bronson v. Hewitt, 2010 BCSC 169 at paras. 323-337, 58 E.T.R. (3d) 14; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762 at paras. 118-122. In Buksh, at para. 31, the court cites from Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.) at 689, that in a personal injury claim, the plaintiff “ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so.”

[88] In my view, this is not an appropriate case to conclude that an adverse inference should be drawn. There is no evidence that the authors of those reports even saw Mr. Milburn. If so, Mr. Milburn could have been examined on the point and copies of clinical notes obtained, such as was done in Bouchard (see also para. 35 of Buksh). Mr. Milburn’s counsel has advised that this evidence was not submitted because it was of no assistance to the court, not that it was adverse to the current medical evidence. In fact, there may have been any number of reasons why the reports were not submitted and while it is possible that they contradicted the reports of Drs. Behroozi and Badii either in whole or in part, it is equally possible that they did not materially add to those reports. As was noted by the court in Bronson at para. 329, an adverse inference can only be drawn if such testimony would be superior in respect of the facts to be proved.

[89] Counsel for Mr. Milburn is entitled to prepare his case, and obtain whatever expert reports that might assist in advancing his case. To suggest that any decision not to use an unidentified expert report leads to an adverse inference in respect of any case is going well beyond the general proposition relating to adverse inferences. The disclosure process is intended to provide opposing counsel with the means of testing the claim of privilege, not to allow such claims to be made that an adverse inference should be drawn in these circumstances.

ICBC Claims and Proper Objections to Examination For Discovery Questions

Written by admin on . Posted in BCSC Civil Rule 7, Civil Procedure, Uncategorized. 130 Comments on ICBC Claims and Proper Objections to Examination For Discovery Questions

In one of the more in-depth judicial discussions of examinations for discovery in the context of a personal injury claims, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of proper objections at a Plaintiff’s examination.
In today’s case (Nwachukwu v. Ferreira) the Plaintiff was injured in a 2006 collision.  In the course of the lawsuit the Plaintiff attended three examinations for discovery.  The Plaintiff’s lawyer raised numerous objections during these and the discoveries were ultimately cut short.  The Defendant brought an application directing the Plaintiff to answer the questions which were objected to and further for permission to conduct a lengthier examination for discovery pursuant to Rule 7-2(2).
Mr. Justice Willcock granted the application finding there was “significant obstruction” at the previous discoveries.  In doing so the Court provided the following helpful comments about the scope of discovery and of common objections:

[32] The scope of examination for discovery has recently been canvassed by this court in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556; More Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166; and Day v. Hume, 2009 BCSC 587.  In those cases, the court reiterated the following principles:  the language of Rule 7-2(18) is identical to the former Rule 27(22) and the scope of examination for discovery has remained unchanged and is very broad.  Rigid limitations rigidly applied can destroy the right to a proper examination for discovery.  Useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose.  An examination for discovery is in the nature of cross-examination.  Counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[33] The time limit established by Rule 7-2(2) creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available.  A largely hands-off approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality.  Allowing wide-ranging cross-examination on examination for discovery is far more cost effective than a practice that encourages objections which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial rather than on examination for discovery.  Where intervention is appropriate, the proper conduct of counsel is to state the objection to the form of a question and the reasons for the objection, but it is not appropriate to make comments, suggestions or criticism.

Applicable Law

[34] Many of the specific objections in issue are addressed in an article by John Shields and Howard Shapray published in The Advocate, Vol. 68, pt. 5 (September 2010) at page 671, referred to by Mr. Markham-Zantvoort in argument.

(a) Relevance

[35] Counsel objects to many questions on the grounds that they are not relevant.  In addressing these objections, I proceed from the proposition that counsel should have broad discretion to frame appropriate questions for the examination of the plaintiff, respecting the principles described in the cases to which I have referred.

(b) Confusion

[36] Counsel objects to many questions on the grounds that he finds them confusing.  In Cominco Ltd. v. Westinghouse Canada Limited (1979), 11 B.C.L.R. 142 (C.A.), the Court of Appeal at para. 19 held:

If a question is difficult to answer, the witness can say so and can be cross-examined about the difficulty. It is for the witness, not counsel, to deal with that.  Difficulty in answering does not exclude a whole area. It excludes specific questions.  No area of fact is closed on the ground that to enter it would “open the floodgates”.

(c) Repetition

[37] Counsel objects to questions he considers repetitive.  As Shields and Shapray note, “asked and answered” is not an appropriate objection in Canada.  Madam Justice Boyd in Rec Holdings Co. v. Peat Marwick Thorne Holdings, [1995] B.C.J. No. 1964 (S.C.), held at para. 9:

It is trite law that an examination for discovery is in the nature of a cross-examination.  While there will be situations in which repeating the same allowable question over and over on cross-examination may amount to intimidation, the Court must be slow to interfere where that tactic is used relatively sparingly and particularly in circumstances in which there are good grounds for the cross-examiner’s belief the witness may be falsifying his evidence.

(d) Inadequate Foundation

[38] Shields and Shapray say there is no requirement that a foundation be laid for a question.  In Cominco, the court noted at para. 632:

The objection is that no foundation was laid for the questions.  That suggestion does not appear to have been made at the time and I think that, if one objects, one should say why.  Presuming that this objection can now be made, I merely say that I know of no requirement that a foundation be laid.  None was cited to us.  Those questions should have been answered by the witness without interruption by counsel.

(e) Compound Questions

[39] Counsel routinely objected to questions that he considered to be compounded questions.  Shields and Shapray say, properly in my view, that objection to the form of question should be used sparingly.

(f) Privelege

[40] Counsel objected, at the most recent examination, when the plaintiff was asked what he alleges or says in relation to the claim.  The plaintiff cannot be asked what counsel told him about his claim or how the case will be framed at trial.  He may not be asked how much he will say he has lost, if the answer requires disclosure of an opinion obtained by the solicitor.  Question 1152 on the examination for discovery seems to seek such information.

[41] The witness cannot be asked to disclose how the facts having assembled, weighed or analysed by counsel.  That is what was offensive in the general requests considered by the court inTriathlon Ltd. v. Kirkpatrick, 2006 BCSC 890.  The questions asked in that case were held to offend the description of the privilege afforded to the solicitor’s brief in Hodgkinson v. Simms(1988), 33 B.C.L.R. (2d) 129 (C.A.).  It was the manner of getting at the work product by asking what facts had been assembled by counsel or what facts would be relied upon, rather than by asking about specific facts, that was objectionable.  The manner in which facts have been marshalled is a question going to trial strategy.  It is for that reason that I expect that counsel have included in the book of authorities Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2007 BCSC 143, although no express reference was made to it in oral submissions.  In that case, questions were held to be objectionable because of what was being sought: conclusions reached by counsel, rather than the evidence of the witness.

[42] Questions that intrude upon privilege are generally objectionable.  That is expressly reflected in Rule 7-2(18).  Care should be taken to protect the solicitor/client relationship.