If evidence is not relevant it is not admissible at trial. So what exactly is relevant evidence in a personal injury lawsuit? Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, providing a concise and useful definition.
In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured while involved in a single vehicle accident involving a Geo Tracker. The lawsuit focused on whether the Tracker was safely designed. In support of her case the Plaintiff wished to put hundreds of documents into evidence. The Defendants objected to some of these arguing that they were not relevant.
Mr. Justice Goepel went through the objections one by one and ruled that some of the documents were relevant and some were not. Before reaching his decisions Mr. Justice Goepel provided the following useful definition of relevant evidence:
 To be admissible, evidence must be relevant to the facts in issue and not subject to exclusion under any other rule of law or policy. Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would appear to be in the absence of that evidence” ( D.M. Paciocco & L. Stuesser, The Law of Evidence (Toronto: Irwin Law,1996) at 19).
 In a civil case, the facts in issue are established by the pleadings. Evidence unrelated to the issues as disclosed in the pleadings is not admissible.
 Not all relevant evidence is admissible. The court must also balance the cost to the trial the process of admitting the evidence. The judge’s task was described by Sopinka J. in R. v. Mohan,  2 S.C.R. 9 at 20-21:
Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is “whether its value is worth what it costs.” See McCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule (see Morris v. The Queen,  2 S.C.R. 190). Whether it is treated as an aspect of relevance or an exclusionary rule, the effect is the same.
 While the above passage was written in the context of the admissibility of expert evidence, the same principles must be considered in determining the admissibility of any form of evidence.
When a party to a personal injury lawsuit wishes to use documents at trial those documents have to be disclosed to the opposing side as per the BC Supreme Court Rules otherwise the evidence may not be admissible. Two recent cases from the BC Court of Appeal have clearly highlighted this. Today, reasons for judgement were released by the BC Supreme Court considering the scope of documents that need to be disclosed.
In today’s case (Beazley v. Suzuki Motor Coroporation) the Plaintiff called a witness to give expert evidence. The witness testified that he had limited knowledge of something known as the “Critical Sliding Velocity standard” and that he had “never proposed such a standard to the National Highway Traffic Safety Administration“.
On cross-examination the Defence lawyer produced a letter written by the witness addressed to the National Highway Traffic Safety Administration apparently “supporting the use of a Critical Sliding Velocity Standard“.
The Plaintiff’s lawyer objected to this cross examination arguing that the letter was not listed on the Defendant’s list of documents and therefore could not be used. Mr. Justice Goepel disagreed finding that documents that are used solely for impeaching an expert wittiness’ credibility do not necessarily have to be listed. Specifically the Court reasoned as follows:
 A party is obliged to list all documents that fall within the purview of Rule 26(1) including those documents that can properly be described as forming part of the solicitor’s brief: Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203; Dykeman v. Porohowski, 2010 BCCA 36. Neither Stone, Dykeman or the cases cited therein deal with the use of documents being introduced to impeach the general credibility of an expert witness.
 A party who chooses to call an expert vouches for that expert’s credibility. The type and nature of documents that might challenge such credibility are endless. They may include articles, letters, testimony, speeches or statements that the expert has made in the past. There may be other articles which critically challenge the expert’s conclusion. Most documents which go to challenge an expert’s opinion or credibility are not documents which are related to the matter in question in the action. They only become relevant because of the expert’s testimony and do not fall under the purview of Rule 26.
 This ruling does not apply to all documents that the defendants may wish to put to this or other witnesses. If a document is otherwise related to a matter in question, it is not protected from disclosure merely because it will be used in cross examination or forms part of the solicitor’s brief.
 The August 5, 1994 letter, however, only becomes relevant because of Mr. Heitzman’s testimony. It was not a document that need be listed and the defendant is entitled to use the document in cross examination.
 To the extent the plaintiffs object to other documents the defendants might wish to put to Mr. Heitzman, those objections will be dealt with as they arise.
An imporant skill of a trial lawyer is being able to persuade the Court, in appropriate circumstances, to exclude expert opinion evidence that is damaging to your client’s case. Two of the many objections that can be raised against opposing expert evidence are bias and lack of necessity. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with these areas of the law.
In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 roll-over car crash. The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC. GMC argued that the vehicle was not negligently designed and further that the Plaintiff was the author of her own misfortune for failing to wear her seatbelt.
In support of their case the Defendants obtained two expert reports. The first was a report from an engineer (who was an employee of the Defendant GMC) who provided opinions about the handling, stability and rollover characteristics of the vehicle in question and whether the vehicle was defective. The second was the report of a statistician who addressed the injury risk to belted and unbelted occupants in rollover accidents.
The Plaintiff applied to exclude these reports from evidence. They argued that the engineer’s employment relationship with the Defendant at the very least created a reasonable apprehension of bias that should disqualify him from acting as an expert. With respect to the statistician’s report the Plaintiffs argued that this evidence was not helpful for the Court.
Mr. Justice Goepel rejected the Plaintiff’s submissions with respect to bias but did agree with the submissions with respect to the statistical evidence. In coming to these conclusions Mr. Justice Goepel provided the following useful summaries of these areas of law:
 Canadian courts appear to have taken different positions on the issue of whether an expert witness’ bias or perceived bias will disqualify him or her from giving evidence at trial. Some courts have held that for expert evidence to be admissible, the expert must be seen to be absolutely neutral and objective. Other courts have concluded that a lack of objectivity, neutrality and independence are matters that only impact the weight to be afforded that expert. Romilly J. in United City Properties Ltd. v. Tong, 2010 BCSC 111 at paras. 35-68, has exhaustively reviewed the jurisprudence.
 The cases are not easily reconciled. Where there is a personal relationship between the proposed expert and the party, where the expert has been personally involved in the subject matter of the litigation or where the expert has a personal interest in the outcome, the expert has not been allowed to testify. Examples of such cases are Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); Royal Trust Corporation of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (Sup. Ct. J.); Bank of Montreal v. Citak,  O.J. No. 1096 (Sup. Ct. J.); and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617. In cases where the relationship between the expert and the party is more institutional in nature, the evidence has been admitted subject to weight. Examples of such cases are R. v. Klassen, 2003 MBQB 253 and R. v. Inco Ltd.(2006), 80 O.R. (3d) 594 (Sup. Ct. J.).
 Expert opinion evidence is admissible only where a judge or jury are unable, due to the technical nature of the facts, to draw appropriate inferences. The defendants seek to call Ms. Padmanapan’s statistical evidence in order to establish a causal connection between a failure to wear a seatbelt in the course of a rollover accident and increased injuries. In certain circumstances statistical evidence can be helpful in determining causation: Laferrière v. Lawson,  1 S. C.R. 541.
 It has been long recognized in British Columbia that a party who fails to use an available seatbelt and sustains injuries more severe than if the seatbelt had been worn will be found to be contributory negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.); Gagnon v. Beaulieu,  1 W.W.R. 702 (B.C.S.C.).
 While there appears to have been statistical evidence led in Yuan and in Gagnon, subsequent cases have held that such evidence is not necessary. In Lakhani (Guardian ad litem of) v. Samson,  B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then was) noted at para. 3:
I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom, and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.
 To succeed on the seatbelt defence, the onus will be on the defendants to establish upon a balance of probabilities that the use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s injuries: Harrison v. Brown,  1 W.W.R. 212 (B.C.S.C.); Terracciano (Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R. (3d) 328 (S.C.).
 The statistical evidence to be led from Ms. Padmanapan is, in my opinion, not necessary and will not assist me as trier of fact in determining the issue of contributory negligence. If the evidence is not necessary, it does not meet the test of admissibility.
When a Defendant is examined for discovery in a BC Injury Claim damaging answers can be read in at trial as evidence against that defendant. A limit to this, however, is that if there is more than one defendant in a lawsuit the evidence can generally only be used against the defendant who was examined (click here to read a previous post discussing this restriction).
Reasons for judgment were released today demonstrating an exception to this restriction. In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 motor vehicle collision. The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.
In the course of the lawsuit representatives of GMC were examined for discovery. The Plaintiff obtained admissions which were useful in advancing their lawsuit. Subsequent to this, GMC sought bankruptcy protection under Chapter 11 of the US Bankruptcy Code. Because of the Bankruptcy the plaintiff’s could no longer compel the GMC representatives as adverse witnesses. The case was set for trial and the Plaintiff wished to read in the discovery answers of these witnesses as against the other defendants. The other defendants opposed this raising the limitation set out in Rule 40(27) of the BC Supreme Court Rules.
Mr. Justice Goepel agreed that the restriction in Rule 40(27) “does not allow exceptions and, accordingly, the discovery evidence would not be admissible pursuant to Rule 40(27) as against anyone other than GMC“.
However, the Court went on to hold that, despite this restriction, the Court could permit this evidence in as against the other defendants under Rule 40(4) of the rules of Court due to the circumstances of this case. Below I set out Mr. Justice Goepel’s useful analysis:
 Rule 40(4) deals with the evidence of witnesses who are otherwise unavailable. Rule 40(4) gives the court the discretion in certain defined circumstances to allow a transcript of prior evidence given by the witness to be put in evidence. The Rule reads:
40(4) Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence.
 Mr. Leffert and Mr. Uthe are both residents of the United States. They are not subject to this Court’s subpoena powers and the plaintiffs cannot compel their evidence at trial.
 The Rule is discretionary in nature. If the witness cannot attend for one of the stated reasons the court may, not must, allow a transcript of prior testimony to be put into evidence, subject only to the requirement of prior notice. In determining whether or not to allow the evidence to be admitted, the court must consider matters of trial fairness and potential prejudice to the parties.
 Rule 40(4) has been the subject of several recent decisions. Most have concerned applications to introduce a deceased plaintiff’s examination for discovery transcript. The authorities were reviewed and considered in Malik Estate v. State Petroleum Corp., 2007 BCSC 934, 74 B.C.L.R. (4th) 330. In Malik, the plaintiff sought to admit into evidence the transcript of the examination for discovery of Mr. Malik that had been conducted by the defendant. Mr. Malik had since died. After reviewing previous decisions dealing with Rule 40(4) and considering at some length the restated rules concerning the admission of hearsay evidence, Burnyeat J. concluded that the transcript of Mr. Malik’s discovery was admissible.
 The arguments in favour of admissibility are much stronger in this case than in Malik. In Malik, the plaintiff was seeking the admission of discoveries conducted by the defendant. Such discoveries often present an incomplete version of the case as an examiner may choose to refrain from examining on some aspect of the case in order to avoid revealing trial tactics. The potential for prejudice in such cases is great, particularly when the witness is deceased and the transcript is the only evidence of that witness that will be before the court.
 That is not the situation in the case at bar. Here the examination was conducted by the plaintiffs. It was conducted with the intent that the evidence would be read in at trial. Absent the bankruptcy, Leffert and Uthe could have been called as adverse witnesses and their evidence would have been admissible against all defendants.
 There is minimal prejudice to the remaining defendants if the evidence is admitted. Mr. Leffert and Mr. Uthe are clearly allied with the GM defendants. There is no reason to believe that they would not voluntarily attend at the trial if the GM defendants requested their attendance. If the evidence is admitted the remaining GM defendants can call Mr. Leffert or Mr. Uthe to explain any admissions that they may have made.
 It may well be pursuant to the Letters of Request that the plaintiffs could again obtain the evidence of Mr. Leffert and Mr. Uthe and then lead that evidence at trial. Rule 1(5) seeks to secure the just, speedy and inexpensive determination of every proceeding on its merits. To put the plaintiffs to the cost and expense of again examining these witnesses would be contrary to and the antithesis of Rule 1(5).
 Rule 40(4) refers to transcripts of other evidence. The plaintiffs in this case wish only to put into evidence those parts of the transcripts which assist their case. While admission of only a portion of the evidence may be objectionable in other circumstances, such as when the witness is deceased, I will allow the plaintiffs in this case to submit only portions of the transcript, subject to the defendants’ right to request that other parts of the discovery that are reasonably connected to those portions already introduced be also put into evidence:Foote v. Royal Columbian Hospital, (1982) 38 B.C.L.R. 222 (S.C.).
 Accordingly, the plaintiffs can read into evidence, pursuant to Rule 40(4), portions of the examinations of Mr. Leffert and Mr. Uthe. That evidence will become evidence at large and will be admissible for and against all parties. The plaintiffs must 14 days prior to trial specify the part of the discovery evidence that they intend to be given at trial. The remaining GM defendants will have the right to request that other parts of the discovery that are reasonably connected to those parts given in evidence also be put into evidence.
Rule 40(27) will be replaced with the new Civil Rule 12-5(46). With respect to the restriction of who the discovery evidence can be used against, the new rule seems to be in line with the current rule.
Rule 40(4) is replaced with Rule 12-5(54) with identical language. Accordingly, this case should retain its value as a precedent once the new BC Supreme Court Civil Rules come into force.
If you would like further information or require assistance, please get in touch.
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.
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