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Chambers Advocacy: Legal Authorities To Be Disclosed in Notice of Application

Written by admin on . Posted in BCSC Civil Rule 8, Civil Procedure, Uncategorized.


One of the ongoing trends in civil litigation is a trend to greater pre-trial disclosure.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing this principle finding that caselaw should be disclosed ahead of Chambers Applications to avoid “chambers by ambush“.
Last week’s case (De Corde v. De Corde) involved a motor vehicle collision.  The Defendant brought a short notice application to compel the Plaintiff to be assessed by a psychiatrist.  The application was dismissed and in doing so Master Bouck provided the following feedback about case-law disclosure for Chambers applications:

[65] The defence took exception to plaintiff’s counsel relying on authorities that were not cited in the response to the notice of application. In fact, the plaintiff makes no reference to any case law in her response. In contrast, the defendants prepared a comprehensive notice of application – including a synopsis of the legal basis for the application with reference to all of the authorities presented in oral argument.

[66] The defence position is not without merit. Both the notice of application and response under the SCCR invite a party to provide a thoughtful written synopsis of legal argument. A properly prepared notice of application or response ensures that the opposing party knows the argument to be met. Thus, there should be no longer be occasion for “chambers by ambush”.

[67] Indeed, in my view, it should be only in the rare instance that a party will surprise the other by citing in oral argument authorities not mentioned in these forms.

[68] Nonetheless, an application brought on short notice would seem to me to be one of those rare instances. Plaintiff’s counsel should not be faulted for any apparent omission in a response necessarily prepared on the eve of the application.

Court Can't "Ride Roughshod" Over Solicitor's Brief Privilege At a Case Planning Conference

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 5, BCSC Civil Rule 7, Civil Procedure, Uncategorized. 64 Comments on Court Can't "Ride Roughshod" Over Solicitor's Brief Privilege At a Case Planning Conference


Reasons for judgement were recently brought to my attention discussing the scope of powers of the Court at Case Planning Conferences. Specifically the Court found that Rule 5-3 does not provide the power to over-ride common law principles of privilege.
In the recent case (Galvon v. Hopkins) the Plaintiff was injured in a motor vehicle collision. She sued for damages. As the lawsuit progressed the Plaintiff did not provide any expert medico-legal evidence to the Defendant.
This concerned the Defendant who brought a Case Planning Conference and obtained an order requiring the Plaintiff to “notify counsel for the defendant of the name of the neurologist with whom the appointment had been made and the date of the appointment, and secondly, that the parties were to provide opposing counsel with written notice forthwith upon any appointment being set for the plaintiff with medical experts, such notice to include the name of the expert, the expertise of the expert, and the date of the appointment“.
The Plaintiff appealed arguing that the Court did not have jurisdiction to make such orders under the Rules of Court. Madam Justice Kloegman agreed and allowed the appeal. In doing so the Court provided the following reasons:
21. I agree with counsel for the plaintiff’s submission that Rule 5-3 cannot be read as to allow the Case Planning Conference Judge or Master to disregard the common law principle of privilege.
22. In my view, Master Bouck was fixated upon settlement of the litigation; always a commendable and important goal of a case planning conference, but not at the cost of ignoring the boundaries of her jurisdiction. It may well be that such information could have been exchanged at a settlement conference, which is a voluntary and without prejudice process, but it should not be mandated as part of trial preparation.
23. …She did not appear to consider that the object of the Rules to avoid trial by ambush only apply to evidence that would be used at trial, not to expert advice received through consultation.
24. By requiring the plaintiff to disclose the very fact of her attendance before a medical expert, and run the risk of an adverse inference if she did not call the expert at trial, the master was also interfering with the plaintiff’s right to elect which witnesses to call. Such interference is not sanctioned, or warranted, I might add, by our Supreme Court Rules.
25. Having concluded that our Rules do not grant the presider at a case planning conference the power to make the orders made by Master Bouck, it follows that she did not have the jurisdiciton to do so.
26. The appeal is allowed and Master Bouck’s orders will be set aside.

Examination For Discovery Transcripts and the Adverse Party Limitation

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized. 59 Comments on Examination For Discovery Transcripts and the Adverse Party Limitation

Although examination for discovery transcripts can be read into evidence at trial, the Rules of Court limit the evidence to being used against “the adverse party who was examined“.  In other words, a litigant can’t use their own transcript to bolster their own case.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this limitation.
In last week’s case (Haughian v. Jiwa) the Plaintiff was involved in a motor vehicle collision.  The Defendant brought a summary trial application seeking to dismiss the claim.  The Plaintiff produced an affidavit which stated that “in my examination for discovery I described precisely how the accident occurred”  and went on to attach “as an exhibit 29 pages for her examination for discovery conducted by counsel for the defendants“.
The Defendant objected to this evidence arguing it was inadmissible.  Mr. Justice Punnett agreed and provided the following reasons explaining the limitation of discovery evidence at trial:

[8] The plaintiff’s affidavit appends portions of her examination for discovery by counsel for the defendants.  The defendants object to the tendering of discovery evidence in this way.

[9] Summary applications are based on affidavit evidence.  However, they are still trials and as such are governed by the rules and evidentiary requirements of a regular trial.  The followingSupreme Court Civil Rules (the “Rules”) are relevant:

9-7(5)  Unless the court otherwise orders, on a summary trial application, the applicant and each other party of record may tender evidence by any or all of the following:

(a)        an affidavit;

…

(c)        any part of the evidence taken on an examination for discovery;

…

[10] However, the breadth of the statement in part (c) above is restricted by Rule 12-5(46) which provides:

(46)      If otherwise admissible, the evidence given on an examination for discovery by a party … may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:

(a)        the adverse party who was examined;

…

[12] The defendants’ objection is that only the defendants can tender the plaintiff’s examination for discovery evidence.  They rely on the rules cited above as well as Tesscourt Capital Ltd. v. FG Nutraceutical Inc., 2011 BCSC 814; Mikhail v. Northern Health Authority (Prince George Regional Hospital), 2010 BCSC 1817; Schwartz v. Selkirk Financial, 2004 BCSC 313; Pete v. Terrace Regional Health Care Society, 2003 BCCA 226; Great Canadian Oil Change v. Dynamic Ventures et al, 2002 BCSC 1295, and Shiels v. Shiels (1997), 29 B.C.L.R. (3d) 193 (S.C.).

[13] I am satisfied that the discovery evidence sought to be introduced by the plaintiff cannot be relied upon by the plaintiff for the truth of its contents.

Plaintiff Expert Witness Allowed to Attend Defendant Examination for Discovery

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Civil Procedure.


The law in BC generally permits only parties and their lawyers to attend examinations for discovery.  In limited circumstances, however, the Court can permit others to attend a discovery relying on the BC Supreme Court’s ‘inherent jurisdiction‘.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Burgess v. Buell Distribution Corporation) the Plaintiff suffered “very serious personal injury” in a motorcycle accident.  He sued the manufacturer and scheduled an examination for discovery of an engineer employed with the Defendant.  The Plaintiff argued that his expert should be allowed to attend as the claim includes “matters requiring an understanding of technical concepts relating to the design, manufacture, and testing of motorcycles and sidecars“.
The Defendant opposed arguing this would add unnecessary time and expense to the Court Proceedings.  Mr. Justice Grauer disagreed with the Defendant and allowed the expert to attend.  In doing so the Court provided the following reasons:

[6] The Rules do not specifically address this issue, but it has certainly been the practice in this province that only the parties and their legal representatives may attend examinations for discovery in the absence of consent or an order of the court.

[7] In Ian Macdonald Library Services Ltd. v. P.Z. Resort Systems Inc. (1985), 67 B.C.L.R. 269, Madam Justice Southin, then of this Court, considered a similar application and said this:

[6]        I think the simple and sensible answer to this question is that counsel should be able to do so whenever the nature of the case is such that counsel cannot reasonably be expected to conduct a full and proper cross-examination of the witness being discovered without expert assistance.

[7]        Whether in any given case such expert assistance is necessary will depend, among other things, on:

1.         The issues in the action;

2.         The level of technical and scientific knowledge which can reasonably be expected of counsel generally at any given time;

3.         The extent of inconvenience to which the parties may be put if counsel must conduct part of an examination then adjourn it, consult with an expert and conduct the rest of it perhaps on some other occasion.

…

[9] I find that the issues in this case raise a level of technical and scientific knowledge beyond what can reasonably be expected of counsel generally.  While counsel normally are very adept at quickly, if temporarily, acquiring specialized knowledge relevant to their cases, it would be unwise I think for the court to second-guess the judgment of counsel as to what is required for the full and fair examination of an opposite party who possesses specialized expertise in this type of case.  Given the nature of the issues, I see nothing that strikes me as unreasonable about the request.

[10] What must be considered however is whether accommodating the request of examining counsel would result in prejudice to the party being examined.  If so, then the court must attempt to weigh that prejudice against the prejudice to the examining party of being deprived of expert assistance.

[11] In this case, no prejudice has been put forward by Harley-Davidson other than the concerns of disruption, increased expense, and extended time.  As to disruption, both counsel are experienced and I see no reason to suppose that this concern is likely to materialize in any meaningful way.  As to increased expense, the evidence does not satisfy me that such a result is likely.  Similarly, the time is at least as likely to be shortened as it is to be extended.

[12] Counsel for the defendant suggests that this will lead us down a slippery slope to a result where counsel will always request expert assistance at examinations for discovery in technical cases.  I very much doubt that that will follow, but in any event each case will be dealt with on its individual circumstances.  Where the examining party can establish the need, and the party being examined cannot establish prejudice, there is no reason to worry.  It did not worry Madam Justice Southin.

[13] As to the concept of proportionality, it seems to me that granting the relief requested is more likely to promote than inhibit the just, speedy, and inexpensive determination of this proceeding on its merits taking into account the amount involved, the complexity of the issues and the importance of conducting a full, fair and informed examination for discovery.  Accordingly, leave is granted as requested.

ICBC Applications to Transfer Lawsuits to Provincial Court Discouraged

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


Reasons for judgement were released last month by the BC Supreme Court, Vancouver Registry, dismissing an ICBC application to transfer a Plaintiff’s lawsuit to Small Claims Court.
In this recent case (Kooner v. Singh) the Plaintiff was injured in a 2009 collision.  He sued for damages in the BC Supreme Court.  Following examinations for discovery the Defendant applied to transfer the claim to Small Claims Court.  Mr. Justice McEwan dismissed the application.  He reiterated some concerns he voiced earlier this year and provided the following reasons generally discouraging these types of applications:

[3] I have commented on other occasions about these applications.  They amount to the Supreme Court being asked to summarily determine that damages could not possibly exceed $25,000 and also to accept that a trial in Provincial Court is the most expeditious way to deal with the action.  On the basis of the material before me, it is not possible to say that the case could not exceed $25,000.  The plaintiff wishes to have the matter heard in Supreme Court, and it would only be on the clearest basis that the court would act to deprive a person who wished to be heard in the Supreme Court of the right to do so.

[4] I am not prepared, on the basis of the material, to summarily find that there is no possibility of the trial establishing damages in excess of $25,000, nor am I in a position to assess whether or not the liability aspect of the claim would foreclose the possibility of such damages.  It seems to me that the defence must be seeking the limitation of $25,000 because there is very little else that would suggest a motivation for such claims.  It is not, as it may once have been, obvious that the Provincial Court is equipped to hear these matters more expeditiously or more cheaply, particularly given the point at which this application is brought, post-discoveries, after most of the expenses that go into a Supreme Court trial have been incurred.  My understanding of the current state of hearing day fees, as such, is that there are none for the first three days of trial.  So that is not a factor.  There was a suggestion before me that the informality of the Provincial Court is an advantage, but unless that informality is tied to reduced time in court, which is not at all clear, I fail to see how that, in itself, results in any particular economy.

[5] I think it should be clear that parties have a right to elect the court in which they bring their actions and that, in doing so, if they persist, they run certain risks.  Those risks, in the case of a plaintiff’s action brought in Supreme Court that should have been brought in Small Claims Court, include the penalty of not receiving costs in the case of success, and also include the hazard, if an offer to settle is made, of double costs in accordance with the Rules setting out those penalties.  It appears from the vantage of the bench that it is much more in the defence interest that the matter remain in Supreme Court than that this application succeed, unless, as I have said, what is really sought is a summary assessment of the case on the basis of very limited information, to bring the matter in under $25,000.  Given the hazards (which the plaintiff is aware of), I am of the view that the plaintiff is entitled to bring the matter in this Court if that is what the plaintiff wishes to do.

[6] I have said as much on the previous occasion of Chang v. Wren in oral reasons given June 10, 2011.  I see no reason to stray from the outcome in that case which was to the effect that unless the court were persuaded that damages could not possibly exceed $25,000 the plaintiff should not be deprived of the opportunity to convince a court that their damages exceed that amount.  I considered it most unsafe to summarily decide a case on the basis of descriptions that do not include the actual evidence of the parties.  Courts certainly have the experience of being persuaded that cases that did not appear to be worth a great deal turn out to be worth much more once they have been heard.  I will also say, as I said in Chang v. Wren, that I am absolutely not persuaded by any efficiency or cost-saving argument, particularly where, as here, the application is brought at a point post-discovery.  There is very little process to avoid at this point and, for the reasons I have already indicated, it is not at all clear that there are cost savings to be realized.

[7] Accordingly, I dismiss this application.

Documented "Prior Inconsistent Statements" Need To Be Listed Under the New Rules of Court

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with document listing obligations under the new Rules of Court.
In last week’s case (Tran v. Kim Le Holdings Ltd.) the Plaintiff sued for damages as a result of personal injuries.  In the course of trial the Defendant called a witness who gave evidence as to the circumstances of the Plaintiff’s injury which were not favourable to the Plaintiff’s case.  The same witness had provided the Plaintiff’s lawyer a statement years before the trial with a different version of events.  The Plaintiff failed to disclose the existence of this document in her list of documents.  The Plaintiff argued that the new Rules of Court don’t require such statements to be listed as they only go to credibility which is a collateral matter.
Mr. Justice Harris disagreed finding that statements containing prior witness inconsistencies can go beyond the issue of credibility and therefore need to be listed.  The Court provided the following reasons:

[13] Counsel submits, first, that a prior inconsistent statement is not a document that could be used to prove or disprove a material fact. It is a document relevant only to credibility. Therefore, it is not required to be listed. Secondly, counsel submits that until the contradictory evidence was given by the witness, counsel had no intention of using the document at trial. The use of the document has only become necessary because of the surprise in the evidence that was given.

[14] I turn to deal with this point. I must say that I am sceptical that the plaintiff’s argument is correct. It is common ground that the document here is covered by litigation privilege, which necessarily ties it into relevant issues in the litigation. Rule 7?1(6) governs the listing of privileged documents. It is not obvious to me from the wording of the rule that the scope of the obligation set out in Rule 7?1(6) is qualified or limited by Rule 7?1(1).

[15] More importantly, however, prior inconsistent statements can be used, in my view, to prove or disprove material facts. Depending on how a witness responds to the statement when put to the witness, the effect of the use of the statement may well go beyond merely affecting credibility. The witness may adopt the content of the statement insofar as it relates to material facts; in that sense, at least, statements can facilitate the proof of material facts. Statements can facilitate the proof of material facts even if the witness does not adopt them, because findings on material facts may be affected by findings on credibility. But if a witness does adopt a prior inconsistent statement and accept the truth of it, that statement may be used as proof of the truth of its contents, and thereby be used to prove or disprove material facts.

[16] A fine parsing of the obligation to list documents is, in my view, contrary to the policy of disclosure which is exemplified by the Stone decision in the Court of Appeal.

Mr. Justice Harris agreed that while the document should have been listed, it could be used in cross examination as the failure to list was done in good faith and further there was no real prejudice to the Defendant.  In doing so the  Court applied the following factors in exercising its discretion:

[19] … What is clear, however, from these cases is that my discretion has to be exercised on the basis of the following principles:

(a)      whether there is prejudice to the party being cross-examined ?? in this case, of course, it is a witness who is being cross-examined, but the relevant prejudice is to the defendants;

(b)      whether a reasonable explanation of the party’s failure to disclose has been provided;

(c)      whether excluding the document would prevent the determination of the issue on its merits; and

(d)      whether, in the circumstances of the case, the ends of justice require the documents to be admitted.

[24] It is evident that there is a policy against insulating a witness from cross-examination on prior inconsistent statements, because to do so would undermine the search for truth. It is also evident that requiring listing can be seen in some respects as being inconsistent with the purpose of litigation privilege. Both of these points were accepted in the Cahoon decision, in the context of a discussion of the limitation, or explanation, of the scope of the Stone decision…

[33] I observe further, with respect to prejudice, that the defendants could readily have determined whether or not the witness had given a statement. The fact of the existence of the statement was within the knowledge of the defendants. It is not a situation quite like Stone where there would simply be an assumption by counsel that a pain journal had likely been kept and that the fact of the existence of the document could not be verified without the document having been listed. In my view, this mitigates the prejudice, to some degree, that is associated with the use of the document.

[34] Weighing and balancing these conflicting principles, I have reached the conclusion that, in the interests of justice, counsel ought to be permitted to use the document for the purpose of cross-examination.

Opening Statement Visual Aid Admissibility Should Be Canvassed At Trial Management Conferences

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


Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, disallowing the use of a PowerPoint presentation in an opening statement before a jury.
In last week’s case (Moore v. Kyba) the Plaintiff was injured in a motor vehicle collision.  Shortly prior to trial the Plaintiff advised the Defendant that he was going to use a PowerPoint presentation in his opening statement.  The Defendant objected arguing this ought to have been canvassed at a Trial Management Conference.  Madam Justice Brown agreed and refused the presentation from being presented to the Jury.  The Court provided the following reasons:

[4] In Brophy v. Hutchinson, 2003 BCCA 21, the British Columbia Court of Appeal sets out the principles which apply to an opening statement.

[24]      The opening’s purpose is to outline the case the party bearing the onus of proof (usually the plaintiff) intends to present.  Counsel’s goal in opening is, or should be, to assist the jury in understanding what his or her witnesses will say, and to present a sort of “overview” of the case so that the jury will be able to relate various parts of the evidence to be presented to the whole picture counsel will attempt to present.

[5] The court continues:

[41]      In an opening statement, counsel may not give his own personal opinion of the case.  Before any evidence is given he may not mention facts which require proof, which cannot be proven by evidence from his own witnesses, or which he expects to elicit only on cross-examination.  He may not mention matters that are irrelevant to the case.  He must not make prejudicial remarks tending to arouse hostility, or statements that appeal to the jurors’ emotions, rather than their reason.  It is improper to comment directly on the credibility of witnesses.  The opening is not argument, so the use of rhetoric, sarcasm, derision and the like is impermissible: see Halsbury, supra, at para.103; Williston and Rolls, The Conduct of An Action (Vancouver: Butterworths, 1982); Olah, The Art and Science of Advocacy (Toronto: Carswell, 1990) at 8-8; Lubet, Block and Tape, Modern Trial Advocacy: Canada, 2nd ed. (Notre Dame: National Institute for Trial Advocacy, 2000).  Against this general background, I will consider the objections the plaintiff now makes to the defendant’s opening address.

[6] I was also provided with Schram v. Austin, 2004 BCSC 1789 and Ramcharitar v. Gill, 2007 Oral Ruling, Docket 01-2332, a decision of Mr. Justice Macaulay.

[7] In Ramcharitar, the defendant did not object to the use of the presentation but to the form and some of the specific content.

[8] At para. 9, Mr. Justice Macaulay said:

Counsel should not expect to use a presentation as an aid during an opening unless he or she has first shown it to opposing counsel and the court, so that any issues about form and content can be addressed in the absence of a jury.

As pointed out in Schram, and as was done here, the proposed use should be raised at a pre-trial conference.  The risk of a mistrial arising otherwise from the improper use of a presentation is simply too great, and any counsel who seeks to rely on the use of a presentation at the last minute, without seeking consent or permission beforehand, may find that the proposed use is not permitted.

[9] Here, there are problems with the content of the Power Point, which include references to the contents of opinions not yet in evidence.  The Power Point would need to be modified before it could be used before the jury.  However, the Power Point was delivered too late to the defendant and to the court to permit this to be done.  As Mr. Justice Macaulay indicated, the Power Point presentation should be dealt with at a trial management conference, it should not be left to the morning of trial to be addressed.  In this case, there was simply no time available to deal with this problem.

Foreign Insurers Entitled to Rely on s. 103 Limitation Defence; Adding Defendant Beyond Limitation Discussed

Written by admin on . Posted in BCSC Civil Rule 6, Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 51 Comments on Foreign Insurers Entitled to Rely on s. 103 Limitation Defence; Adding Defendant Beyond Limitation Discussed


Reasons for judgement were released today by the BC Court of Appeal addressing the ability of foreign insurers to rely on the s.103 limitation defence for no-fault accident benefits.
By way of background, BC’s Financial Institutions Act requires out of Province vehicle insurers to sign a “Power of Attorney Undertaking” in essence promising to provide the minimum insurance coverage available in BC when their insured vehicles are travelling in this Province.  As many North American jurisdictions have insurance limits well below those required in BC this often creates excess exposure for foreign insurers.
The Court of Appeal confirmed PAU signatories can take advantage of the limitation contained in s. 103 of BC’s Insurance (Vehicle) Regulation. The Court further discussed the common sense approach BC law imposes in adding a defendant to an existing lawsuit despite the availability of a limitation defence.
In today’s case (Moldovan v . Republic Western Insurance Company) the Plaintiff was injured while travelling as a passenger in a rented U-Haul vehicle.  The vehicle was insured by the Republic Western Insurance Company.  The Plaintiff sought no fault benefits and sued ICBC.  When he realized he sued the wrong insurer the limitation period under s.103 of the Insurance (Vehicle) Regulation had passed.
He sought to add RWIC to the existing lawsuit which the Court of Appeal ultimately permitted.  In doing so the Court explained that while a foreign insurer PAU signatory can take advantage of the s. 103 limitation period the Court retains a discretion to add a Defendant to an existing lawsuit even beyond the limitation period due to section 4(1)(d) of BC’s Limitation Act and further due to the former Rule 15(5)(a) which is reproduced as the new Supreme Court Rule 6-2(7).  The Court provided the following reasons:
[17] As will be seen below, I am of the opinion that while s. 103 would normally be available to RWIC to assert in defence of the plaintiff’s claim, s. 4(1)(d) of the Limitation Act nevertheless does permit the court to join RWIC as an additional defendant. I also conclude that RWIC should be so joined in the circumstances of this case…
[25] I conclude that the chambers judge erred in declining to apply s. 103 on the basis that the PAU does not constitute an agreement to incorporate into RWIC’s insurance policy all the terms that are required to be incorporated in a policy issued by ICBC.  The fact that s. 103 was not incorporated into U-Haul’s rental contract did not make it somehow inapplicable to Mr. Moldovan, any more than the silence of a British Columbia policy on the question of limitation would make it inapplicable to a claim against ICBC.  As a person claiming benefits under Part 7 in a British Columbia action, the plaintiff is subject to the statutory limitation in s. 103.  No breach of the principle of extraterritoriality arises…

[27] I set out below the material provisions of s. 4 again for convenience:

4(1)      If an action to which this or any other Act applies has been commenced, the lapse of time limited for bringing an action is no bar to

(a)        proceedings by counterclaim, including the adding of a new party as a defendant by counterclaim,

(b)        third party proceedings,

(c)        claims by way of set off, or

(d)        adding or substituting a new party as plaintiff or defendant,

under any applicable law, with respect to any claims relating to or connected with the subject matter of the original action…

[35] The circumstances surrounding the plaintiff’s claim, which need not be rehearsed here, were reviewed by the Master.  Most important, he found that the plaintiff’s delay “resulted not from any tactical decision designed to gain an advantage for the plaintiff but from solicitor inadvertence or an honest error in judgment.”  As against this, RWIC has not alleged any particular prejudice. A helpful summary of the law on the weighing of relative prejudice in this context is found in the analysis of Martinson, J. in Wadsworth v. McLeod, supra:

Regard must be had for the presence or absences of prejudice. There must be a balancing of prejudices: Teal at p. 299. Prejudice can be assumed, or actual.

Prejudice means prejudice associated with the delay itself. The fact that an opposing party is affected negatively by such an amendment does not mean that he is prejudiced. The prejudice must affect the ability to respond to the amended claim: Bel Mar Developments Inc. v. North Shore Credit Union, [2001] B.C.J. No. 512, 2001 BCSC 388 at para. 9.

I agree with the following comments of Master Bolton in Takenaka v. Stanley, [2000] B.C.J. No. 288, 2000 BCSC 242 at paras. 41 and 42:

Putting aside any issues of actual prejudice in addition to the prejudice resulting from the loss of the cause of action or of the limitation defence, I am satisfied that the prejudice to a plaintiff in the former event will usually be greater than the prejudice to a defendant in the latter. In the former case the plaintiff loses the opportunity to ask a court to consider a claim that the defendant has done something the law of the land considers to be actionable. In the latter, the defendant loses a windfall opportunity to avoid the issue altogether. Their respective situations may be precisely balanced in purposely financial terms, but not, I conclude, as a matter of justice. A right to seek justice cannot fairly be equated with a right to cut short the search without an answer.

I believe that his analysis provides a firmer foundation for the conclusion I reached at paragraph 68 of the Mah decision ([2000] B.C.J. No. 44), that if all else is equal the balance of prejudice should be resolved in favour of the plaintiff.”  [At paras. 22-4.]

[36] In the circumstances of this case, it seems to me that the balance of prejudice is clearly in the plaintiff’s favour, and that it is just and convenient that RWIC was added as a defendant notwithstanding the time limitation in s. 103 of the Regulation.  I would therefore dismiss the appeal and confirm the order of the chambers judge below, although for different reasons than those she expressed.

Plaintiff Statement to Police Excluded Based on Hearsay Objection

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases.

(Update: November 6, 2012 – the trial judges liability decision was upheld by the BC Court of Appeal in reasons for judgement released today)
In my effort to archive ‘voir dire‘ rulings dealing with civil procedure issues in personal injury cases, I summarize recent reasons for judgement released by the BC Supreme Court, New Westminster Registry, addressing the admissibility of a Plaintiff’s post accident statement to police.
In last week’s case (Nerval v. Kherha) the Plaintiff was involved in an intersection collision in Abbotsford in 2007.  She sued for damages.  Following the collision the Plaintiff provided a statement to the investigating officer regarding the circumstances of the crash.  At trial the Plaintiff testified as to how the collision occurred.  She also wished to introduce her statement to the investigating officer.  The Defendant objected arguing this statement could not properly be admitted.  Mr. Justice Armstrong agreed and ruled that the statement was inadmissible.  The court provided the following concise reasons:

[47]Ms. Nerval applied to tender her statement to Cst. Baskin because she could not recall the events surrounding the collisions. A voir dire was held. Cst. Baskin reported that Ms. Nerval had told him that she was making a left-hand turn to go westbound on Sandpiper. At the time there was a van facing southbound indicating a left turn and an intention to go eastbound on Sandpiper. She said she did not see any other motor vehicle coming towards her. She did not remember if she had her signal light on; there was no mention of a signal light in his notes. Ms. Nerval told him that the other van had its signal on. That is the totality of his conversation with Ms. Nerval.

[48]The defence opposed the admission of this statement into evidence on the basis that it fails to meet the requirement of necessity. The defence argues that to be admissible the statement must be used to rebut an allegation of recent fabrication, be a prior inconsistent statement, or be a statement contemporaneous with an event reported in the statement.

[49]I conclude that the statement is not admissible. The circumstances under which the statement was taken do not reflect that it was taken contemporaneously with the event. The evidence did not support the suggestion that it was a contemporaneous report. There was no suggestion that the statement was inconsistent with the evidence given by Ms. Nerval at the trial and no suggestion that the there was an allegation of recent fabrication of evidence.

[50]If I am wrong in my conclusions regarding the admissibility of the statement, I would otherwise have concluded that the statement did not contain any information that materially augmented the evidence of Ms. Nerval at trial.

Exclusion of Witnesses Results in New Trial in Chronic Pain Case

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

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






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

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

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

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

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







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