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Tag: civil procedure

Lessons From the Toothbrush Case: Setting Aside An Adverse Party Notice

Last year I discussed the practice of calling a Defendant during the course of a Plaintiff’s case in chief using the adverse party provisions of the BC Supreme Court Rules.  Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, in the highly publicized ‘broken toothbrush’ trial, addressing these and the circumstances where the Court can set aside an Adverse Party Notice.
In the recent case (Alnoor v. Colgate-Palmolive Canada Inc.) the Plaintiff alleged she was injured while brushing her teeth with a toothbrush manufactured by the Defendant.  She alleged that the toothbrush was negligently designed and sued for “substantial damages“.
In the course of the lawsuit the Plaintiff attempted to examine the President of Colgate-Palmolive Canada for discovery.   These attempts were dismissed with the Court finding that the President was not an appropriate witness to be examined in the circumstances of the case.
As trial neared the Plaintiff served an Adverse Party Notice on the Defendant requiring the president to testify at trial.   Madam Justice Wedge exercised her discretion under Rule 12-5(23) to set aside this Notice finding again that this was an inappropriate witness to be compelled at trial.  In doing so the Court provided the following reasons:

29] The recent decision of Mr. Justice Butler in Dawson v. Tolko Industries Ltd., 2010 BCSC 1384, examines the meaning and effect of these provisions in detail. He observed at para. 18 that the Court is granted only limited jurisdiction to set aside an adverse witness notice. It is only where the evidence of the person is “unnecessary” that the Court can set aside the notice.

[30] Further, as the Court noted at para. 19, it is only in a clear case that a judge should exercise his or her discretion to set aside a subpoena on the ground that the evidence is unnecessary. That is because the Court should be very cautious about second guessing the litigants concerning the benefits they may derive from calling a particular witness.

[31] I agree with those comments. However, the Court is also granted discretion under subrule (24) which provides that where an application is made to strike an adverse witness notice, the Court may make any order it considers will further the objects of the rules.

[32] As I noted earlier, Ms. Alnoor first attempted over two years ago to issue an appointment to examine Mr. Jeffery for discovery. However, the Court ruled that Mr. Jeffery was not the appropriate representative on the basis that his position in the company is strictly managerial. He has no knowledge pertaining to any of the issues arising in the litigation. Ms. Alnoor has been clear that she wants to call Mr. Jeffery, not because he has any knowledge of the issues in the lawsuit, but because he is the person within the corporation who is ultimately responsible for the corporation’s actions, its consumer safety policies, and its recall policies. She points to the various mission statements on the defendant’s website, published over Mr. Jeffery’s signature.

[33] Ms. Alnoor wishes to question Mr. Jeffery about his statement that the defendant is committed to consumer safety, about his responsibility for product safety, and its recall policies. She wants to ask Mr. Jeffery why the company did not recall the toothbrush model in question before she purchased one. Because Mr. Jeffery is the president, submits the plaintiff, he must be the one ultimately responsible to recall products and warn consumers, and she wants to question him about those responsibilities.

[34] The difficulty with Ms. Alnoor’s argument is that the evidence she seeks to elicit from Mr. Jeffery is not relevant to the proof of her claim. She has brought a negligence action against the defendant. She must establish that the defendant was negligent in the manufacture, design, and/or testing of the toothbrush such that it was defective, and that the defect caused the harm the plaintiff alleges she suffered when using it. Any acknowledgment by Mr. Jeffery that he is the person ultimately responsible for the defendant’s actions, including its recall policies, will not advance the plaintiff’s claim in any way.

[35] The identity of the person ultimately responsible and any acknowledgment by that person that he is ultimately responsible by virtue of his management position within the company is simply irrelevant to the negligence factors the plaintiff must prove in order to succeed in her claim.

[36] In the event that Ms. Alnoor does establish her claim, the corporation, not Mr. Jeffery or any other senior management person, will be held liable for the damages flowing from the corporation’s negligence. That is so whether or not Mr. Jeffery acknowledges the various responsibilities he has as the corporation president. The company will be liable whether or not Mr. Jeffery had any idea that his company was manufacturing a defective product.

[37] In short, the evidence Ms. Alnoor intends to elicit from Mr. Jeffery is not relevant to the issues in the lawsuit. Irrelevant evidence is not admissible. It is unnecessary evidence within the meaning of the Rule.

Defendant Called During Plaintiff's Case in Traumatic Brain Injury Claim

In most BC Supreme Court lawsuits Plaintiff’s obtain evidence from the opposing side prior to trial by way of examination for discovery.   Helpful portions of the discovery transcript are then read into the trial record in support of the Plaintiff’s claim.   This is a controlled way to lead helpful evidence from a potentially damaging source.
There is, however, another way (albeit a riskier way) to use the Defendant in support of a Plaintiff’s claim.  The Rules of Court allow one party to call an “adverse party” as part of their case in chief with delivery of a subpoena and witness fees.   Rule 12-5(22) goes further and allows a Plaintiff to put the Defendant on the witness stand without notice if the Defendant is “in attendance at the trial“.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this seldom used option in action.
In last week’s case (Rintoul v. Gabriele) the Plaintiff pedestrian was struck while in a cross-walk.   The Plaintiff was born without upper limbs and after being struck “would have been unable to break her fall.  In landing on the pavement, she hit her head and was briefly unconscious“.
Both liability and quantum (fault and value of the case) were at issue with the Defendant arguing the Plaintiff was to blame at least in part for the collision and that her on-going issues were not related to the brain trauma suffered in the collision.  Mr. Justice Saunders disagreed and found the Defendant fully at fault for the impact.  In the course of the trial the Plaintiff’s lawyer took advantage of Rule 12-5(22) and put the Defendant on the stand as their first witness.  Damaging admissions were extracted which could not be remedied when the Defendant was re-called as a witness in the Defence case.  In highlighting this interesting turn of events Mr. Justice Saunders provided the following reasons:
[7] The defendant, Ms. Gabriele, was in attendance on the first day of trial. She was called to the witness stand as the first witness for the plaintiff’s case, and cross-examined…

[14] Ms. Gabriele testified that she was turning her vehicle and had just started to enter the pedestrian crosswalk, going perhaps 10 or 15 km/h, when she felt a bump, and saw a flash of a face in her headlights. She stopped and got out, and ran to the front of her vehicle. The plaintiff was lying unconscious in the crosswalk.

[15] Ms. Gabriele was not challenged on her estimate of her speed.

[16] Ms. Gabriele was asked why she did not, after looking to the right, look to the left again before making her turn, to see if any of the pedestrians she had previously seen on the southeast corner were walking in the crosswalk. She replied, “I made a mistake”….

[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.

[25] I do not accept this second version of events…

The Court went on to conclude that the Plaintiff did suffer from long term consequences as a result of her injuries and assessed global damages at just over $950,000 including non-pecuniary damages of $175,000.  In addition to the above point of civil procedure, this case is worth reviewing in full for Mr. Justice Saunders lengthy discussion of the expert evidence called to address the issue of the Plaintiff’s traumatic brain injury.

BC Sexual Assault Civil Claims Legal Update

Two judgements were released this week by the BC Supreme Court dealing with issues relating to civil claims arising in the context of alleged sexual assaults.  The first case dealt with improper statements during closing arguments to a jury, the second with disclosure of records relating to a criminal prosecution.
In the first case (RK v. BR) the 17 year old Plaintiff became intoxicated at a party.   The Plaintiff “stopped at his best friend’s home to see if he could spend the night“:.    His friend was not home but his friend’s father let him spend the night.  The defendant (the father) “sexually assaulted the plaintiff later that night.”
The Plaintiff sued for damages and selected trial by Jury.   The Defendant admitted to the assault and during the course of the trial conceded that the Plaintiff was entitled to some damages.  The question was what amount was appropriate.
During closing arguments the Plaintiff’s lawyer made statements to the Jury that the Defendant objected to.  Particularly the Plaintiff’s lawyer  “questioned the defendant’s decision to stay in the courtroom while the plaintiff testified. He suggested the jury could infer the defendant had remained in court to intimidate the plaintiff, or to draw pleasure from seeing his victim again. He also suggested the jury could infer that the defendant had been grooming the plaintiff for a sexual encounter. Plaintiff’s counsel also suggested to the jury that the plaintiff would see the defendant’s face whenever he made love.”
The Defendant argued that these comments were inappropriate and inflammatory and asked that the judge dismiss the Jury.    Mr. Justice Brown reluctantly granted the motion.  In doing so he provided the following reasons:

[25]         Considering all the circumstances and applying the above framework to the case at bar, I find that the impugned portions of counsel’s submissions were highly prejudicial. First of all, the submission that the plaintiff will see the defendant’s face every time he makes love for the rest of his life has no foundation in the evidence. It was a highly speculative statement, with the sole purpose of inflaming the jury against the defendant. Counsel for the plaintiff says the statement did have a basis in the evidence because the plaintiff testified that he remembered the assault a couple of times a week, sometimes upon waking. He says Dr. Pulleyblank’s evidence that similar situations could trigger painful memories is a further factual basis for his argument.

[26]         This argument is unconvincing. The evidence counsel relies on does not support the inference he asked the jury to draw; especially given evidence from the plaintiff that directly contradicts this statement. The plaintiff testified that since the assault he has had a positive sexual experience. There was also evidence that the plaintiff’s symptoms of posttraumatic stress disorder have diminished over time. To suggest the plaintiff would see the defendant’s face every time he made love for the rest of his life was more than mere rhetoric verging on the extravagant; it was a highly inflammatory statement that had no basis in the evidence.

[27]         Likewise, counsel’s statement that the defendant groomed the plaintiff for a sexual encounter by inviting him to sleep over and providing him with alcohol has no basis in the evidence. Counsel says the basis for it lies in several statements made during trial. He relies on the statement of the plaintiff’s mother that two or three months earlier the defendant had phoned to ask if the plaintiff could sleep over. Counsel for the plaintiff also points to the plaintiff’s testimony that the defendant sometimes bought beer for his son and his friends. He also relies on the defendant’s testimony that in his youth he arranged consensual sexual acts with other males by asking them to ‘sleep over’. He says these statements, taken together, provide a basis for the jury to draw an inference that the defendant was grooming the plaintiff for a sexual encounter.

[28]         The evidence does not provide a foundation for the statement that the defendant was grooming the plaintiff. There is no evidence the assault was premeditated. The defendant admitted he had called the plaintiff’s mother at an earlier time, but this was at his son’s request and to let the plaintiff’s mother know it was all right for the plaintiff to sleep over. The plaintiff’s arrival on the defendant’s doorstep that evening was clearly unplanned. Again, the sole purpose of this statement was to inflame the minds of the jury against the defendant. It was improper and amounts to misconduct.

[29]         Counsel’s comments on the defendant’s presence in the courtroom were also inflammatory and prejudicial, and amount to misconduct, especially in light of the exchange of letters between the parties prior to trial. A party has a right to be in a courtroom. To suggest otherwise is improper. Even more improper is the suggestion that the defendant remained in court to intimidate or leer at the plaintiff. The defendant expressed a willingness to absent himself from the courtroom to spare the plaintiff’s feelings. Casting aspersions on a party for exercising his right to be present is misconduct. Suggesting a lack of empathy for remaining in court when counsel knew he had received a letter from the counsel for the defendant specifically offering to absent himself if doing so would make the plaintiff feel more comfortable is also misconduct.

[30]         Counsel’s submission significantly prejudiced the defendant. The submission was relatively short. Taking all of Mr. McLeod’s inflammatory and improper statements together, I concluded that if I were to try to disabuse the jury of these matters I would simply re-emphasize them in the jurors’ minds. If I instructed the jury to disregard these portions of counsel’s brief submission entirely, my comments would likely rebound against anything he had said and against the plaintiff’s case. I concluded that I could not right the scales of the resulting prejudices with instructions anywhere close to neutral again. I must ensure there is no prejudice to either side. I do not see how any corrective judicial comments could do anything but suggest that counsel had misled the jury, intentionally or not.

[31]         A judge discharges a jury with great reluctance. In this case, the jury was well constituted. They were attentive. At the beginning of the trial, I carefully explained their important role in the judicial system in British Columbia and the confidence placed in them. Discharging a jury in these circumstances embarrasses the court and, more importantly, tends to undermine public confidence in the justice system.

[32]         However, given the circumstances, and considering the potential prejudice, no less to the plaintiff’s case then to the defendant’s, it would be unfair to continue with the jury in the circumstances. The only appropriate response was to discharge the jury with the regrets and thanks of the court.

[33]         The defendant’s application to dismiss the jury and continue by judge alone is granted.


The second case released this week addressed the ability of a party to have the BC Supreme Court order production of materials relating to criminal charges arising from allegations of sexual abuse.

In this case (The British Columbia College of Teachers v. British Columbia (Attorney General) ) a former teacher was “criminally charged with sexually offending against a child.“.  In the course of the prosecution a preliminary inquiry was held and the alleged victim testified.   The Attorney General stayed the prosecution before trial.

The BC College of Teachers wanted to access a copy of the transcript of the preliminary inquiry evidence to use against the former teacher in “disciplinary proceedings“.   The former teacher opposed this.

Madam Justice Griffin ordered that the records be produced and provided the following reasons:

[41]         In an analogous context of considering an ongoing publication ban, the Court of Appeal of this province considered that a trial judge’s analysis should not be based on whether a benefit to the administration of justice could be gained by the publication of redacted information, but rather, should be based on whether a serious danger could be avoided by declining to provide the information: Global BC, A Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169 at para. 72.

[42]         Here, so long as the information is provided in a way that protects the identity of the complainant and thereby maintains the publication ban, there is no danger to be avoided by declining to allow the sought-after information to be provided.  To put it another way, I do not consider that the administration of justice will be harmed if the preliminary inquiry transcript is produced to the College in a way that continues to protect the identity of the complainant.

[43]         I am therefore persuaded that this is a case where I ought to exercise my inherent jurisdiction to allow for production of a transcript of the preliminary inquiry to the College, in such a way as to continue to maintain the publication ban pursuant to s. 486.4(2).

[44]         In the circumstances of this case, I grant the following declaratory relief:

(a)      the publication ban imposed under s. 539(1) of the Code in relation to Abbotsford Provincial Court Registry file No. 60526, no longer applies, and thus does not apply to any request by the College for a copy of the transcript of the evidence that was taken at the preliminary inquiry; and

(b)      the continuing publication ban imposed under s. 486.4(2) of the Code will not be violated if the Crown redacts all information that could identify the child complainant from the transcript of the evidence that was taken at the preliminary inquiry in Abbotsford Provincial Court Registry file No. 60256 and produces the redacted transcript to the College for its use in disciplinary proceedings against Mr. Sidhu.

Getting Your Time Estimate Right For Trial

Ask any Judge or Lawyer whose spent time in the BC Court System and they’ll tell you that it is important not to underestimate the amount of time you’ll need to have your matter heard in Court.  If you do you will run the risk of having your case struck off the list and reset for a later date.  Sometimes the matter can be put off well into the future, be it a trial or a chambers application.  Reasons for judgement were published this week on the BC Supreme Court website demonstrating this.
In this week’s case (Smith v. Bregt) the Plaintiff was injured in a motor vehicle collision.  She elected to prosecute her case under the BC Supreme Court Fast Track Rule.  One of the current requirements of the current fast track rule (rule 66) is that the trial must be completed within two days.  As the trial got underway it became clear that it could not be completed in two days.  The Defence lawyer brought a motion seeking to have the case removed from the Fast Track.  Madam Justice Dorgan granted the motion, declared a mistrial and ordered that the trial be reset for a later time.  In reaching this conclusion the Court gave the following reasons:

[10] By the endorsement of her pleadings, the plaintiff opted for the Rule 66 trial process.  That signals that the case is suitable to be tried within 2 days.  It is then incumbent upon the plaintiff to tailor its case to fit into the 2day estimate.  The defendant has relied on the endorsement.  So has the administration in that the endorsement impacts the timing of other trials.

[11] If I order that the rule no longer applies, I assume the plaintiff will not get a trial date for some time.  Neither counsel has given me any information from the trial co-ordinator’s office as to what dates are available.  The plaintiff is geared up.  She has given her evidence-in-chief.  Trial preparation is completed.  She clearly wants this matter resolved.  She wants to proceed, to continue, and I can appreciate that.

[12] On the other hand, the defendants submit the plaintiff has taken her own case out of the provisions of Rule 66 by the first witness called, and the defendants argue that the court must enforce the rule with an eye to its purpose.  And, as Mr. Penner pointed out, by a plaintiff’s Rule 66 endorsement a defendant loses his/her right to a trial with a jury.

[13] Because the whole trial agenda timetable is completely out of whack, people will be inconvenienced whether or not the trial proceeds under Rule 66.

[14] Having considered this carefully, I am of the view that the purpose of the rule will be thwarted entirely if the application of the defendants is dismissed.  The interests of justice and fairness to the parties require that a plaintiff, who elects to proceed pursuant to Rule 66, must put its case in within 2 days, barring consent of the parties or reasonably unforeseeable circumstances arising since the trial agenda was filed and leave of the court.

[15] The defendants do not consent to the trial now continuing to completion, which I conclude will require at least 2 more days.  No reasonably unforeseen circumstances have emerged. The endorsement by the plaintiff is the plaintiff’s chance to proceed under Rule 66.  The manner in which the plaintiff has proceeded or the way the case has unfolded leads me to conclude that the case is inappropriate for Rule 66.

[16] In conclusion, pursuant to Rule 66(8), I order that Rule 66 ceases to apply to this action.  I declare a mistrial and order that the trial be placed on the trial list and that I am not seized.

As my readers know, Rule 66 is being abolished as of July 1, 2010, and is being replaced with a new Fast Track Rule known as Rule 15. Rule 15 appears to be mandatory for all personal injury claims with a trial time estimate of 3 days or less.  Like Rule 66 it limits time for discovery to 2 hours and takes away the parties right to a Jury Trial.

The rule relied on in the above case permitting a Court to remove a trial from the Fast Track remains in place under the New Rules and is reproduced at Rule 15-1(8).  Accordingly this case will likely continue to remain a useful precedent under the New Rules and lawyers and litigants themselves should be cautioned to err on the side of overestimating the length of their trials to avoid a result like this one.

Excluding Witnesses From Open Court in British Columbia

If there are concerns that witnesses at trial will try to ‘match-up‘ their testimony it is  important to exclude them from Court before they testify.   In British Columbia the Supreme Court Rules don’t have any provision addressing the exclusion of witnesses during trial, however the Court retains a discretion to make such an order pursuant to it’s ‘inherent jurisdiction‘.  Reasons for judgement were released today providing a summary of this area of law.
In today’s case (He v. Yeung) the parties had a dispute about a commercial relationship.  The key witnesses to the negotiations were expected to testify and the Court was asked to decide whether an order should be made excluding these witnesses before they took the stand.  Mr. justice Burnyeat refused to make such an order and in doing so provided the following useful summary of this area of BC Civil Procedure:

[3] McLachlin and Taylor, British Columbia Practice (3rd ed.), Looseleaf (Markham, Ont.:  LexisNexis Butterworths, 2006), sets out this statement regarding the practice in British Columbia:

One limitation on the principle of an open court is the practice as to exclusion of witnesses.  The court, upon application of any party, may order that witnesses be excluded in the interest of securing the best possible evidence.  While the British Columbia Rules, unlike those of certain other jurisdictions, do not expressly confer a power to exclude witnesses on the court, it appears that the court has an inherent power to make such an order: see Moore v. Lambeth County Court Registrar, [1969] 1 All E.R. 782 (C.A.).  The practice is for counsel to ask for an order excluding witnesses.  …. If a witness defies an order of exclusion or circumvents it by discussing the proceedings with those who were present in the courtroom, his evidence cannot be excluded for this reason, although the weight given it may be reduced: Crawford et at. v. Ferris, [1953] O.W.N. 713 (H.C.); R. v. Dobberthien, [1973] 6 W.W.R. 539 (Alta. C.A.), affd (sub nom. Dobberthien v. The Queen) (1974), 50 D.L.R. (3d) 305 (S.C.C.).  Moreover, the witness may be cited for contempt:R. v. Carefoot, [1948] 2 D.L.R. 22 (Ont. H.C.).

(at p. 40?2)

[4] The Learned Author of The Law of Evidence, 10th ed. (London: Sweet & Maxwell, 1906) states:

If the judge deems it essential to discovering the truth that the witnesses should be examined out of the hearing of each other, he will order them all on both sides to withdraw, excepting the one under examination.  Such an order is, upon the application of either party at any period of the trial, rarely withheld, but it cannot be demanded of strict right.

(footnotes omitted) (at pp. 1007-1008)

[5] A more extensive history tracing the practice as far back as the story of Susannah from the Book of Daniel is set out in Wigmore, A Treatise in the Anglo-American System of Evidence in Trial at Common Law, Vol. 6 (Boston: Little Brown, 1940).  Wigmore states that the practice came from Germanic common law which the English law inherited.

[6] While the Rules of Court in Alberta (since 1923), in Manitoba (since 1913), in Ontario (since 1913), and in Saskatchewan (since 1921) provide that a judge may order a witness to be excluded at the request of either party, no such provision is specified in the British Columbia Rules or in a British Columbia statute.  Accordingly, it is the inherent jurisdiction of the Court which confers the power to exclude witnesses in civil trials.

[7] The traditional reasons for excluding witnesses include:  (a) if the hearing of opposing witnesses were permitted, the listening witnesses could ascertain the points of difference between their testimonies and could shape their own testimony to better advantage; and (b) regarding witnesses on the same side of the litigation, it deprives the later witness of the opportunity of shaping his or her testimony to correspond with the testimony of the earlier witness.

[8] In Bird et al. v. Vieth et al. (1899), 7 B.C.R. 31 (S.C.–F.C.), McColl C.J. on behalf of the Court stated that the ruling of a trial judge to exclude defendants as if they were witnesses was in error, and that a new trial should be allowed.  In the context of that appeal, the following statement was made:

We are of opinion that the learned trial Judge erred in dealing with the question of the defendants’ exclusion from the Courtroom as if they were in the same position as a witness, not a party to the action, whose exclusion, if requested, is commonly ordered as of course.  (at pp. 31?32)

[9] In McIntyre et al. v. McIntyre, [1925] 2 W.W.R. 581 (B.C.S.C.), Macdonald J. ruled that both plaintiffs who would be witnesses were entitled to remain in the Court but that, with the concurrence of their counsel, the one plaintiff would be excluded while the other plaintiff was giving evidence.  The rationale for why it was necessary for the plaintiffs to be available was described as follows:

If that were granted and the plaintiff excluded, something might arise and counsel would not be aware of what his client’s views were on the matter, and he would have to run out of Court. … The party instructing counsel would not be in a position to conduct his case if he were excluded from the Court.  (at p. 582).

[10] In the context of a criminal appeal, Branca J.A. made this statement in R. v. Smuk, [1971] 4 W.W.R. 613 (B.C.C.A.):

In my practice, in our law courts, counsel have always asked for an order excluding witnesses and the order is a discretionary one.  On the civil side the litigants, of course, have an absolute right, subject to certain exceptions, to remain in court and on a criminal charge the accused has the same right.

Hearsay Evidence: BC Injury Trials and Missing/Deceased Witnesses

Hearsay evidence is an out of Court statement introduced at trial for the truth of its contents.  In British Columbia hearsay evidence is admissible in certain circumstances.  BC Courts apply a ‘principled exception‘ to the general rule against hearsay evidence in circumstances where there is sufficient ‘necessity and reliability‘.
What happens if a key witness dies before a personal injury claim in BC heads to trial?  Can previously recorded evidence from that witness be introduced under this ‘principled exception‘?  Reasons for judgement were published this week on the BC Supreme Court website dealing with this issue.
In this week’s case (Simon v. Portsmith) the Plaintiff suffered very serious injuries when he was struck by a vehicle as he was walking along a highway in Salmon Arm, British Columbia.
A key question at trial was weather the owner of the vehicle consented to the driver operating the car.  Another important issue was where the Defendant driver lived at the time of the accident.  The owner of the vehicle could have been ‘vicariously liable‘ for the driver’s actions depending on the answers to these questions.
A witness by the name of Mr. Stushnov was expected to give evidence on where the alleged driver was living at the time of the crash.  Prior to trial Mr. Stushnov swore an affidavit setting out his evidence on this point.  The witness died unexpectedly prior to trial.  The Defendant tried to introduce the affidavit as evidence.  The Plaintiff objected.  Mr. Justice Boyce let the evidence in providing the following useful analysis:

[13] In the case at bar, the plaintiff concedes that the evidence is necessary. Mr. Stushnov is no longer available to testify. The issue is whether the evidence meets the threshold reliability test.

[14] The evidence was taken under oath before a lawyer. Mr. Stushnov was not involved with the events giving rise to this claim in any way. There is no suggestion that he had any personal relationship with Mr. Portsmith other than by providing him a place to live for a period of time. There is no suggestion of any reason that he might have to not tell the truth. He had no interest in the outcome of this proceeding. He was an independent witness.

[15] It is of course true that the plaintiff would now have no way to test Mr. Stushnov’s credibility through cross-examination. However, as counsel for the plaintiff on this motion frankly stated, when the matter was before the court on the Rule 18A application, the credibility of Mr. Stushnov was not in issue and was not raised. What was in issue was the credibility of Mrs. Bostock.

[16] Further, as noted by counsel for the defendant, plaintiff’s counsel has known since 2005 what evidence Mr. Stushnov was expected to give. They chose not to interview the witness to test his credibility.

[17] This evidence is clearly important to the defence. In my view, despite the fact that the plaintiff does not have the ability to cross-examine the deponent, which is something that is often the case when resort has to be made to hearsay evidence, the circumstances surrounding the making of the statement provide sufficient safeguards of reliability to justify its admissibility. The affidavit will therefore be received in evidence.

Can You Call a Witness After You Close Your Case?

The answer is yes and reasons for judgement were published today on the BC Supreme Court website discussing this area of the law.
In today’s case (MacEachern v. Rennie) the plaintiff suffered a severe brain injury when her head came into contact with a tractor trailer unit while she was walking or riding a bicycle along a highway in Surrey, BC.
The Plaintiff presented her case in court and called over 35 witnesses to discuss the crash and the extent of her accident related injuries.  After the Defendants opened their case the Plaintiff’s lawyers re-established contact with a witness that they had lost contact with.  The Plaintiff wished to re-open her case to call the witness before the end of trial.  The Defendants would not consent to this.  Mr. Justice Ehrcke ruled that it would be appropriate to permit the Plaintiff to call this witness.  In ordering so he summarized and applied the law as follows:
[8] I have not been referred to any authorities that are directly on point, that is, dealing with an application by the plaintiff in a civil case to re-open for the purpose of calling a missing witness during the course of the defence case. There are, however, numerous cases dealing with applications to re-open to call further evidence after the defence has concluded its case. Those cases make it clear that the court has a discretion to allow a party to re-open to adduce new evidence, even after judgment has been rendered, but before the order has been entered…

[10] The present case is neither an appeal nor is it a criminal matter. In British Columbia the leading case on re-opening a civil trial before the entry of the formal order is Clayton v. British American Securities Ltd., [1934] 49 B.C.R. 28 (C.A.). A majority of the five justice division who sat in that case rejected the dissenting view that the due diligence requirement must be applied as a strict rule. In support of the majority position Macdonald J.A. wrote at pp. 66 to 67:

My view has always been that the trial judge might resume the hearing of an action apart from rules until entry of judgment, but as it was vigorously combatted I have given it careful consideration. The point, as far as I know, has not been squarely decided; at least by any cases binding upon us. It is, I think, a salutary rule to leave unfettered discretion to the trial judge. He would of course discourage unwarranted attempts to bring forward new evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof. If the power is not exercised sparingly and with the greatest care fraud and abuse of the Court’s processes would likely result. Without that power however injustice might occur. If, e.g., a document should be discovered after pronouncement of judgment, but before entry, showing that the judgment was wrong and the trial judge was convinced of its authenticity no lack of diligence by a solicitor in not producing it earlier should serve to perpetuate an injustice. The prudent course is to permit the trial judge to exercise untrammelled discretion relying upon trained experience to prevent abuse, the fundamental consideration being that a miscarriage of justice does not occur.

There are reasons for rules governing the admission of evidence by an Appellate Court, not applicable to a trial judge. Hearing new evidence is a departure from its usual procedure and it is fitting that departures in ordinary practice should be limited by rules to prevent abuse. Entry of judgment may be merely a formality but it is necessary, that at some arbitrary point the jurisdiction of the trial judge should end. A vested right to a judgment is then obtained subject to a right to appeal and should not be lightly jeopardized. Before the gate is closed by entry a trial judge is in a better position to exercise discretion apart from rules than an Appellate Court. He knows the factors in the case that influenced his decision and can more readily determine the weight that should be given to new evidence offered. I may add that he might well be guided, although not bound by the rules referred to.

[11] On the material before me in the present case I am satisfied that the proposed new witness, Mr. Salter, has evidence to give that is clearly relevant to important issues and could affect the result. There is little, if any, prejudice to the defendants in allowing the plaintiff to re-open to call his evidence, because the application comes so early in the defence case. There is no suggestion that the defendants would have differently examined any of the witnesses they have so far called had Mr. Salter been called on May 14, prior to the close of the plaintiff’s case. In any event, the CN defendants must have known what evidence Mr. Salter might give, since unlike counsel for the plaintiff, they spoke to him months ago.

[12] I reject the defendants’ submission that the present application should be dismissed on the basis that plaintiff’s counsel failed to exercise due diligence in locating Mr. Salter. The standard of due diligence requires that serious efforts be made, but the standard is not one of perfection   Mr. Salter is a person of no fixed address who at the time of the accident was, like the plaintiff, living in a tent city. The difficulty this posed in finding him must be obvious. I am satisfied that plaintiff’s counsel took all reasonable steps to locate Mr. Salter, and they are not to be faulted for the fact that their efforts did not bear fruit prior to the close of the plaintiff’s case.

[13] Counsel for the CN defendants suggested that the plaintiff should have asked for an adjournment to locate Mr. Salter. I find that suggestion quite unrealistic given that plaintiff’s counsel had no reason to believe that their efforts would be successful if they only had a little more time.

[14] I am satisfied that the interests of justice require that the plaintiff be permitted to re-open her case to call Mr. Salter as a witness.

Rule 37B and the Discretion of the Court

As I’ve previously written, one of the biggest improvements in the new Rule 37B over it’s predecessor (Rule 37) is that it gives the Court discretion when assessing costs consequences when a party beats a formal settlement offer at trial.
Reasons for judgment were released today by the BC Supreme Court demonstrating the flexibility of this discretion in assessing fair costs consequences.
In today’s case (Petojevic v. Solari) the Plaintiff sued for personal injuries.  Prior to trial the Defendants made a formal settlement offer of $60,000.  After trial the Plaintiff was awarded a total of just over $42,000 in damages.  In the defence of the claim the Defendants incurred “costs” of $5,051 and disbursements of $2,060.
The Defendants brought an application to be awarded “double costs”.  Under the old Rule 37 the Judge would have had no discretion in making such an award and double costs would automatically be awarded in these circumstances.  Under the new Rule 37B, the court has significant discretion over the costs to be awarded when a formal settlement offer is beat due to Rule 37B(5) and (6) which read as follows:

Cost options

(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party, in whole or in part, of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d)  if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

[am. B.C. Reg. 165/2009, s. 1 (a), (b) and (c).]

Considerations of court

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

In today’s case Mr. Justice Williamson refused to award the Defendant double costs but did award increased costs at 125% of the actual costs.  In justifying this result Mr. Justice Williamson highlighted the following facts:

[5] Here, the offer was not accepted and the matter went to trial. Nevertheless, the Court retains a discretion with respect to costs. Generally, litigants will be limited to the maximum costs allowable pursuant to Rule 66 (29) unless the Court rules otherwise.  In determining whether to “otherwise order” the circumstances to be considered may include the making of an offer pursuant to Rule 37, the relationship of the award to the offer, the length of the trial, the degree of complexity, the conduct of the litigation, the financial circumstances of the parties, and any other relevant circumstances.

[6] In addition, I have in mind the express object of Rule 66 to provide a speedier and less expensive determination of certain actions, and the object of Rule 37 to encourage settlement.

[7] The defendant concedes that in exercising a discretion pursuant to Rule 37B(5) an award may be discounted for work done prior to the delivery of an offer to settle.  They note that the ceiling for double costs awards pursuant to Rule 66 would amount to $13,200. They therefore say that their claim for costs in the amount of $10,102.24 plus disbursements is reasonable as it is equivalent to a discount of approximately 25%. In addition, the defendants note that the plaintiff was granted several adjournments and given the fact that the plaintiff was represented by counsel during two periods after the delivery of the offer to settle, he had considerable time to consider the appropriateness of the offer and the consequences of failure to accept it.

[8] The plaintiff submits Rule 66 should apply. He submits in any case the offer came after examination for discovery, an attempt at mediation, and an application to strike portions of the plaintiff’s claim. As such, he submits, any award of costs to the defendants should be limited.

[9] Here the trial took two days, the period contemplated by Rule 66. Liability was admitted, and the trial was not particularly complex, although previously existing injuries were a somewhat complicating issue. The defendant submits the plaintiff’s conduct of the litigation had a negative impact on the proceedings, a situation unfortunately not unusual when litigants represent themselves. I have no direct evidence of the financial circumstances of the plaintiff, although I infer from the evidence of impact of his injuries that he is in financial difficulty.

[10] The amount awarded at trial is more than two thirds of the amount offered by defendants. As well, on the second day of the proceedings the plaintiff succeeded in obtaining an award of special damages greater than that offered at that point by the defendants.

[11] The defendants proffered Bill of Costs in the amount of $5,051.12 plus disbursements of $2,060.02. They seek a doubling of the costs plus the disbursements ($10,102.24 plus $2,060.02 = $12,162.26).

[12] Taking all of these factors into consideration, and exercising the discretion permitted a trial judge pursuant to the Rules, I am satisfied that it would be contrary to the object of these Rules to deny the defendants application. However, I am not persuaded in the circumstances of this case that the award of costs sought by the defendants is warranted. In the result, I award costs to the defendants at 125% of their claimed costs ($5,051.12 X 1.25 = $6,313.90) plus disbursements of 2,060.02 for a total of $8,373.92.