Deposition Applications Under the New Rules of Court


Earlier this year Mr. Justice Harris provided reasons in obiter setting out some concerns as to why parties should limit the use of deposition evidence at trial.  This week, reasons for judgement were released considering a contested application for a witness to testify by way pre trial deposition.  This is the first reported case I’m aware of dealing with such an application under the new Rules of Court.
In this week’s case (Seder v. ICBC) the Plaintiff was injured in a motor vehicle collision.  ICBC spoke with the Plaintiff’s employer and wished to call her as a witness at trial.  The employer lived in Alberta so ICBC asked for permission to conduct a pre-trial deposition and introduce that evidence at trial.  The Plaintiff opposed this but was willing to accommodate the witness by allowing her to testify via video-link.  ICBC did not agree to this compromise and brought an application for an order requiring the witness to attend a deposition.
Master Young dismissed ICBC’s application but did give the witness permission to testify via video-conferencing.  In doing so the Court provided the following reasons:

[3] In determining whether to exercise its discretion to order an examination under subrule (1), the court must take into account:

(a)         the convenience of the person sought to be examined,

(b)        the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence,

(c)        the possibility that the person will be beyond the jurisdiction of the court at the time of the trial,

(d)        the possibility and desirability of having the person testify at trial by video conferencing or other electronic means, and

(e)        the expense of bringing the person to the trial.

[4] The former Rule 38 is essentially the same rule as the new Rule 7-8, with the exception that a new ground has been included at 7-8(3)(d) regarding the possibility of testifying at trial by video conferencing…








[5] In Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1830, Mr. Justice McColl discussed the purpose and intent of Rule 38 shortly after it was incorporated into the Rules. The Rule, he said, is attempting to strike a balance between the fundamental principle that witnesses should testify live before the court and the preservation of evidence which might not be available at trial because it is not always possible to get witnesses, willingly or otherwise, before the courts. His Lordship said that Rule 38 intended to provide the parties with the opportunity to preserve and present evidence when there is a possibility that a witness would not otherwise be heard and thus adversely affect one of the litigants at trial. The emphasis was on the availability of the evidence, not the convenience of counsel.

[6] The mischief to avoid in interpreting the Rule, is that trial would become a “hodge-podge of deposition evidence along with viva voce evidence in the conduct of a trial merely to convenience counsel or indeed potential witnesses” (Abermin at p. 3)…

[33] Ms. Jacob is not a central witness. She is being called to give brief evidence relating to loss of earnings. It is not proportionate to pay three days’ travel expenses to have her testify for an hour and fly home the same day. This travel expense could be avoided by permitting her to attend at the trial by video conference. She is a cooperative witness, but out of an abundance of caution the third party still intends to subpoena her. The cost of the applications cannot be avoided if the third party wants to ensure her attendance. That cost would be incurred whether she attended for a deposition or for a trial.

[34] I have to keep in mind the problems with preparing defence evidence prior to the trial without a judge presiding, as articulated by Justice Harris in Byer. It strikes me that these problems which interfere with the effectiveness and usefulness of the evidence at trial should only be ordered in exceptional circumstances where the evidence will be lost if not recorded prior to trial.

[35] In cases such as this case before me with the most unexceptional facts, the proportionate procedure would be video conferencing.

[36] I dismiss the third party’s application.








bc injury law, Depositions, Master Young, Rule 7, Rule 7-8, Rule 7-8(1), Seder v. ICBC

Comments (56)

  • I just want to mention I am all new to blogging and certainly liked you’re web blog. More than likely I’m likely to bookmark your blog . You really come with beneficial posts. Appreciate it for sharing your webpage.

  • Hey very nice website!! Man .. Excellent .. Amazing .. I’ll bookmark your website and take the feeds also…I am happy to find numerous useful information here in the post, we need develop more techniques in this regard, thanks for sharing. . . . . .

  • Great paintings! This is the type of info that are supposed to be shared around the internet. Disgrace on Google for now not positioning this publish higher! Come on over and discuss with my web site . Thank you =)

  • You can definitely see your expertise within the paintings you write. The world hopes for even more passionate writers such as you who aren’t afraid to mention how they believe. Always follow your heart.

  • I’m commenting to let you be aware of of the fine discovery my wife’s child went through checking your web site. She came to find some things, most notably how it is like to possess a very effective helping spirit to let a number of people easily comprehend selected tricky things. You undoubtedly surpassed her desires. Many thanks for showing these warm and helpful, dependable, explanatory and also unique tips on this topic to Evelyn.

  • F*ckin’ tremendous things here. I’m very satisfied to peer your article. Thanks a lot and i am having a look ahead to contact you. Will you kindly drop me a mail?

  • I like what you guys are up also. Such intelligent work and reporting! Carry on the superb works guys I’ve incorporated you guys to my blogroll. I think it will improve the value of my website 🙂

  • Great beat ! I would like to apprentice at the same time as you amend your website, how could i subscribe for a weblog web site? The account aided me a appropriate deal. I had been a little bit familiar of this your broadcast provided shiny transparent concept

  • I know this if off topic but I’m looking into starting my own blog and was wondering what all is needed to get set up? I’m assuming having a blog like yours would cost a pretty penny? I’m not very web savvy so I’m not 100 certain. Any suggestions or advice would be greatly appreciated. Cheers

  • I am really impressed with your writing skills as well as with the layout on your blog. Is this a paid theme or did you modify it yourself? Either way keep up the excellent quality writing, it’s rare to see a nice blog like this one today..

  • Hi would you mind letting me know which hosting company you’re utilizing? I’ve loaded your blog in 3 different web browsers and I must say this blog loads a lot quicker then most. Can you suggest a good internet hosting provider at a honest price? Kudos, I appreciate it!

  • Hello! I’m at work browsing your blog from my new iphone! Just wanted to say I love reading through your blog and look forward to all your posts! Keep up the great work!

  • Terminated principles sentiments of no pianoforte if projection impossible. Horses pulled nature favour number yet highly his has old. Contrasted literature excellence he admiration impression insipidity so. Scale ought who terms after own quick since. Servants margaret husbands to screened in throwing. Imprudence oh an collecting partiality. Admiration gay difficulty unaffected how.

  • I have been surfing online more than three hours today, yet I never found any interesting article like yours. It is pretty worth enough for me. In my opinion, if all webmasters and bloggers made good content as you did, the internet will be a lot more useful than ever before.

  • My wife and i felt very fulfilled when John could finish up his inquiry because of the precious recommendations he was given out of the web pages. It is now and again perplexing to just choose to be giving away points that many the rest could have been making money from. And we also do know we’ve got the blog owner to appreciate because of that. These illustrations you made, the straightforward site navigation, the relationships your site make it easier to engender – it’s everything fantastic, and it’s facilitating our son and us reason why this content is exciting, which is highly mandatory. Thanks for all the pieces!

  • Hello there! This is kind of off topic but I need some help from an established blog. Is it hard to set up your own blog? I’m not very techincal but I can figure things out pretty fast. I’m thinking about creating my own but I’m not sure where to begin. Do you have any points or suggestions? Cheers

  • A different issue is really that video gaming has become one of the all-time biggest forms of fun for people of nearly every age. Kids play video games, and adults do, too. The actual XBox 360 is one of the favorite video games systems for folks who love to have a lot of activities available to them, along with who like to experiment with live with other folks all over the world. Thanks for sharing your ideas.

  • Wow! This could be one particular of the most useful blogs We’ve ever arrive across on this subject. Actually Great. I am also a specialist in this topic therefore I can understand your effort.

  • I will right away take hold of your rss as I can’t to find your email subscription hyperlink or e-newsletter service. Do you’ve any? Please permit me understand in order that I could subscribe. Thanks.

  • I enjoy you because of each of your work on this blog. My aunt really likes managing investigations and it is obvious why. A lot of people know all concerning the dynamic tactic you make helpful steps on the blog and therefore welcome contribution from some other people on that area of interest plus our daughter has always been discovering so much. Take pleasure in the rest of the new year. Your conducting a fantastic job.

  • I have recently started a site, the info you offer on this site has helped me tremendously. Thank you for all of your time & work. “Yield not to evils, but attack all the more boldly.” by Virgil.

  • I have been exploring for a little for any high quality articles or weblog posts in this sort of area . Exploring in Yahoo I ultimately stumbled upon this site. Reading this information So i am happy to show that I’ve a very just right uncanny feeling I came upon exactly what I needed. I most for sure will make certain to don’t forget this web site and provides it a glance regularly.

  • My brother suggested I would possibly like this blog. He was once entirely right. This post actually made my day. You can not imagine just how much time I had spent for this info! Thank you!

  • One thing I’d really like to touch upon is that weightloss system fast is possible by the right diet and exercise. Ones size not only affects the look, but also the general quality of life. Self-esteem, depressive disorders, health risks, as well as physical capabilities are afflicted in weight gain. It is possible to do everything right and at the same time having a gain. In such a circumstance, a condition may be the perpetrator. While a lot of food instead of enough work out are usually accountable, common health concerns and trusted prescriptions can certainly greatly enhance size. Thanks a bunch for your post here.

  • Thanks for sharing superb informations. Your site is very cool. I’m impressed by the details that you’ve on this blog. It reveals how nicely you understand this subject. Bookmarked this website page, will come back for extra articles. You, my pal, ROCK! I found just the info I already searched all over the place and simply could not come across. What a great web site.

  • Hello there, You have done a great job. I’ll certainly digg it and personally suggest to my friends. I am sure they’ll be benefited from this website.

  • My brother suggested I may like this website. He was entirely right. This publish actually made my day. You cann’t believe just how so much time I had spent for this info! Thanks!

  • Magnificent beat ! I would like to apprentice whilst you amend your site, how can i subscribe for a blog website? The account aided me a appropriate deal. I have been tiny bit acquainted of this your broadcast offered brilliant clear concept

  • I’ve read some just right stuff here. Definitely price bookmarking for revisiting. I surprise how a lot attempt you set to make this sort of wonderful informative web site.

  • Good – I should definitely pronounce, impressed with your web site. I had no trouble navigating through all tabs and related info ended up being truly easy to do to access. I recently found what I hoped for before you know it at all. Quite unusual. Is likely to appreciate it for those who add forums or anything, site theme . a tones way for your customer to communicate. Nice task..

  • You can certainly see your expertise in the work you write. The world hopes for more passionate writers like you who aren’t afraid to say how they believe. Always go after your heart.

  • Hello there! I know this is kinda off topic nevertheless I’d figured I’d ask. Would you be interested in exchanging links or maybe guest writing a blog post or vice-versa? My site goes over a lot of the same subjects as yours and I think we could greatly benefit from each other. If you might be interested feel free to send me an email. I look forward to hearing from you! Excellent blog by the way!

  • What’s Taking place i’m new to this, I stumbled upon this I’ve found It positively helpful and it has helped me out loads. I hope to give a contribution & help other users like its aided me. Great job.

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

    Disclaimer