Excluding Prejudicial Evidence in BC Civil Claims


One exception to the general rule that relevant evidence should be admitted in a civil trial deals with prejudice.  If the prejudicial effect of relevant evidence outweighs it’s probative value a trial judge has the discretion of excluding it.  The BC Court of Appeal recently discussed this principle in the context of an ICBC claim.
In today’s case (Gray v. ICBC) the Plaintiff was involved in a motor vehicle collision.  She was allegedly at fault for this crash and was sued by the driver and passenger in the other vehicle involved in the collision.  The Plaintiff was insured with ICBC.  ICBC denied coverage to the Plaintiff arguing that she was impaired at the time of the crash and therefore in breach of her insurance.  The Plaintiff sued ICBC arguing she was not impaired and that ICBC was required to provide her coverage.
After the crash the Plaintiff was given a breathalyzer test by the Vancouver Police Department and her test yielded readings well above the legal limit.  At trial the Plaintiff argued that the breathalyzer readings were faulty because the machine was not set up properly.  ICBC responded with expert evidence stating that “there is nothing to indicate that the Breath Test Supervisor did not set up this instrument correctly“.   The Plaintiff countered pointing out that there was nothing in the police files indicating what set up steps were taken by the Breathalyzer Supervisor.  This left ICBC scrambling and in the course of trial they were able to locate the Breathalyzer Supervisor and the notes detailing the set up steps that were taken at the relevant time.
The Plaintiff objected to this evidence being introduced arguing that it’s late disclosure was severely prejudicial.  The trial judge agreed.  The Court held that while the supervisor could testify he could not rely on  or refer to the breathalyzer maintenance notes in giving his evidence.  Ultimately the Plaintiff succeeded at trial with the judge finding that she was not in breach of her insurance.  ICBC appealed arguing the trial judge was wrong in excluding the evidence.  The BC Court of Appeal allowed the appeal and ordered a new trial.  In doing so the BC High Court provided the following reasons about the exclusion of prejudicial evidence:
As Mr. Justice Wood said, speaking for this Court in Anderson (Guardian ad litem) v. Erickson (1992), 71 B.C.L.R. (2d) 68 (C.A.), “There is no doubt that a Judge trying a civil case in Canada has a discretion to exclude relevant evidence on the ground that its prejudicial effect outweighs its probative value”…

[27]         In my view, the trial judge erred in her approach to the exclusion of the documentary evidence prepared by Mr. Czech. In exercising her discretion, she was required to balance the probative value of the evidence against the potential prejudice to Ms. Gray of its admission and to make a judgment whether the prejudice outweighed the probative value. It is apparent that she did not undertake this exercise. Rather, she excluded the evidence after balancing the prejudice to the respondent, Ms. Gray, if the evidence were admitted against the prejudice to the appellants if it were excluded. Thus, she erred in principle in her approach and in failing to take into account a critically important factor – the probative value of the impugned evidence. It follows that she did not exercise her discretion judicially.

[28]         Moreover, the trial judge erred in prohibiting Mr. Czech from using his records to refresh his memory. Witnesses are entitled to refresh their memory by any means, including by inadmissible evidence: see R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535.

Interestingly the BC Court of Appeal did not determine whether the evidence should have been excluded, rather that the wrong test was used.  The Court directed a new trial requiring the correct principle to be applied in deciding whether the evidence should be admitted.

bc injury law, Gray v. ICBC, Past Recollection Recorded, Prejudicial Evidence, Probative Value, Recollection Refreshed, Rule 7, Rule 7-1, Rule 7-1(21)

Comments (73)

  • I simply want to mention I’m all new to blogging and honestly liked your web site. Almost certainly I’m likely to bookmark your site . You really come with excellent articles. With thanks for sharing your web-site.

  • I am not certain the place you are getting your information, however great topic. I must spend a while learning much more or working out more. Thanks for great info I was on the lookout for this information for my mission.

  • you are actually a excellent webmaster. The web site loading pace is incredible. It kind of feels that you are doing any distinctive trick. Moreover, The contents are masterpiece. you have done a wonderful task on this matter!

  • Thanks for your posting. I also think that laptop computers have gotten more and more popular nowadays, and now in many cases are the only type of computer included in a household. It is because at the same time potentially they are becoming more and more inexpensive, their computing power is growing to the point where they’re as robust as desktop from just a few in years past.

  • I’m not that much of a internet reader to be honest but your sites really nice, keep it up! I’ll go ahead and bookmark your website to come back later on. Many thanks

  • What i do not understood is actually how you are not actually much more well-liked than you may be now. You’re so intelligent. You realize therefore significantly relating to this subject, made me personally consider it from a lot of varied angles. Its like men and women aren’t fascinated unless it’s one thing to do with Lady gaga! Your own stuffs nice. Always maintain it up!

  • After study just a few of the blog posts on your website now, and I really like your way of blogging. I bookmarked it to my bookmark website record and will probably be checking again soon. Pls check out my site as nicely and let me know what you think.

  • One more thing. I really believe that there are quite a few travel insurance internet sites of dependable companies that allow you enter your holiday details and acquire you the quotations. You can also purchase an international travel insurance policy on internet by using your credit card. Everything you should do is always to enter your travel particulars and you can begin to see the plans side-by-side. You only need to find the program that suits your allowance and needs and after that use your bank credit card to buy it. Travel insurance on the web is a good way to search for a dependable company with regard to international holiday insurance. Thanks for sharing your ideas.

  • Hey There. I found your blog using msn. This is an extremely well written article. I will make sure to bookmark it and come back to read more of your useful information. Thanks for the post. I’ll definitely comeback.

  • What’s Taking place i’m new to this, I stumbled upon this I have discovered It absolutely useful and it has aided me out loads. I’m hoping to give a contribution & assist other customers like its aided me. Great job.

  • As I web-site possessor I believe the content material here is rattling fantastic , appreciate it for your efforts. You should keep it up forever! Best of luck.

  • I just could not depart your web site prior to suggesting that I extremely enjoyed the standard information a person supply for your guests? Is going to be back regularly in order to inspect new posts

  • Hello there! I could have sworn I’ve been to this website before but after checking through some of the post I realized it’s new to me. Anyways, I’m definitely glad I found it and I’ll be book-marking and checking back often!

  • After I initially commented I clicked the -Notify me when new feedback are added- checkbox and now every time a remark is added I get four emails with the identical comment. Is there any approach you may remove me from that service? Thanks!

  • I’ll immediately seize your rss feed as I can’t find your e-mail subscription link or newsletter service. Do you’ve any? Kindly allow me understand in order that I could subscribe. Thanks.

  • Months on ye at by esteem desire warmth former. Sure that that way gave any fond now. His boy middleton sir nor engrossed affection excellent. Dissimilar compliment cultivated preference eat sufficient may. Well next door soon we mr he four. Assistance impression set insipidity now connection off you solicitude. Under as seems we me stuff those style at. Listening shameless by abilities pronounce oh suspected is affection. Next it draw in draw much bred.

  • Howdy, i read your blog occasionally and i own a similar one and i was just wondering if you get a lot of spam responses? If so how do you protect against it, any plugin or anything you can recommend? I get so much lately it’s driving me crazy so any assistance is very much appreciated.

  • Wow! This blog looks just like my old one! It’s on a completely different topic but it has pretty much the same layout and design. Wonderful choice of colors!

  • Thanks for sharing your ideas. I would also like to state that video games have been actually evolving. Modern technology and revolutions have made it easier to create reasonable and fun games. These kind of entertainment games were not actually sensible when the real concept was being experimented with. Just like other forms of technological innovation, video games too have had to evolve via many many years. This itself is testimony towards the fast continuing development of video games.

  • Thanks a lot for the helpful write-up. It is also my opinion that mesothelioma has an incredibly long latency period of time, which means that signs and symptoms of the disease won’t emerge right up until 30 to 50 years after the first exposure to mesothelioma. Pleural mesothelioma, that’s the most common form and is affecting the area throughout the lungs, could potentially cause shortness of breath, chest pains, and also a persistent coughing, which may cause coughing up bloodstream.

  • Thanks for sharing excellent informations. Your website is so cool. I am impressed by the details that you¡¦ve on this web site. It reveals how nicely you perceive 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 site.

  • Generally I do not read article on blogs, but I would like to say that this write-up very forced me to try and do so! Your writing style has been amazed me. Thanks, quite nice post.

  • Thanks for sharing excellent informations. Your website is so cool. I am impressed by the details that you have on this site. It reveals how nicely you understand this subject. Bookmarked this web 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 site.

  • When I initially commented I clicked the “Notify me when new comments are added” checkbox and now each time a comment is added I get four emails with the same comment. Is there any way you can remove people from that service? Many thanks!

  • Thanks for another great article. Where else could anybody get that kind of info in such an ideal way of writing? I have a presentation next week, and I am on the look for such info.

  • I¡¦ll right away take hold of your rss feed as I can’t in finding your e-mail subscription link or e-newsletter service. Do you’ve any? Kindly let me recognise so that I may just subscribe. Thanks.

  • I was very pleased to find this net-site.I needed to thanks on your time for this wonderful read!! I definitely enjoying each little bit of it and I have you bookmarked to check out new stuff you blog post.

  • I’ve read several good stuff here. Definitely worth bookmarking for revisiting. I wonder how much effort you put to create such a magnificent informative website.

  • I do agree with all the ideas you have presented in your post. They’re really convincing and will certainly work. Still, the posts are too short for beginners. Could you please extend them a bit from next time? Thanks for the post.

  • I have been browsing online more than three hours today, yet I never found any interesting article like yours. It’s pretty worth enough for me. In my view, if all site owners and bloggers made good content as you did, the web will be much more useful than ever before.

  • My wife and i felt absolutely happy that Raymond managed to carry out his basic research from the precious recommendations he made from your own weblog. It’s not at all simplistic to just be giving for free tips which a number of people have been selling. So we keep in mind we have got the writer to give thanks to because of that. Most of the explanations you have made, the straightforward web site navigation, the relationships you help promote – it’s all fabulous, and it is assisting our son and our family believe that that issue is interesting, and that is extraordinarily important. Thank you for all the pieces!

  • Thanks , I have recently been looking for info approximately this topic for ages and yours is the greatest I have discovered till now. However, what in regards to the conclusion? Are you sure in regards to the source?

  • Great write-up, I’m normal visitor of one’s website, maintain up the excellent operate, and It’s going to be a regular visitor for a long time.

  • I’m not that much of a online reader to be honest but your blogs really nice, keep it up! I’ll go ahead and bookmark your website to come back later on. Many thanks

  • Wonderful blog! I found it while searching on Yahoo News. Do you have any tips on how to get listed in Yahoo News? I’ve been trying for a while but I never seem to get there! Thanks

  • This is the precise weblog for anyone who needs to seek out out about this topic. You understand so much its virtually arduous to argue with you (not that I actually would want…HaHa). You definitely put a brand new spin on a subject thats been written about for years. Great stuff, simply nice!

  • I have seen a lot of useful items on your web site about pc’s. However, I have the thoughts and opinions that netbooks are still less than powerful adequately to be a sensible choice if you frequently do jobs that require loads of power, such as video touch-ups. But for web surfing, microsoft word processing, and most other prevalent computer work they are just great, provided you may not mind the small screen size. Thank you sharing your opinions.

  • I’ve been exploring for a bit for any high-quality articles or blog posts in this sort of area . Exploring in Yahoo I ultimately stumbled upon this web site. Reading this info So i’m satisfied to express that I have an incredibly just right uncanny feeling I came upon exactly what I needed. I so much indisputably will make sure to do not omit this site and give it a look regularly.

  • I simply wanted to write a quick message to say thanks to you for all of the nice facts you are showing here. My incredibly long internet search has at the end been honored with reasonable knowledge to exchange with my friends and classmates. I ‘d suppose that we visitors are definitely blessed to exist in a fantastic website with very many brilliant individuals with valuable pointers. I feel somewhat fortunate to have discovered your site and look forward to many more pleasurable times reading here. Thank you again for a lot of things.

  • We stumbled over here coming from a different page and thought I might check things out. I like what I see so now i am following you. Look forward to looking into your web page again.

  • Wonderful blog! I found it while surfing around on Yahoo News. Do you have any tips on how to get listed in Yahoo News? I’ve been trying for a while but I never seem to get there! Thank you

  • You can certainly see your enthusiasm in the work you write. The world hopes for even more passionate writers such as you who are not afraid to say how they believe. All the time go after your heart. “Experience is a good school, but the fees are high.” by Heinrich Heine.

  • Hey just wanted to give you a brief heads up and let you know a few of the images aren’t loading properly. I’m not sure why but I think its a linking issue. I’ve tried it in two different internet browsers and both show the same outcome.

  • Magnificent beat ! I would like to apprentice while you amend your site, how can i subscribe for a blog website? The account helped me a acceptable deal. I had been tiny bit acquainted of this your broadcast offered bright clear idea

  • Excellent web site. Plenty of useful information here. I am sending it to several friends ans also sharing in delicious. And certainly, thanks for your sweat!

  • Valuable information. Lucky me I found your web site by accident, and I am shocked why this accident didn’t happened earlier! I bookmarked it.

  • Howdy just wanted to give you a brief heads up and let you know a few of the images aren’t loading correctly. I’m not sure why but I think its a linking issue. I’ve tried it in two different web browsers and both show the same outcome.

  • Hiya! Quick question that’s entirely off topic. Do you know how to make your site mobile friendly? My site looks weird when viewing from my apple iphone. I’m trying to find a theme or plugin that might be able to fix this problem. If you have any recommendations, please share. Appreciate it!

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