BC Rules of Court Update: The Adverse Witness Rule
The Rules of Court permit parties to a lawsuit to force opposing parties to take the stand during the course of a lawsuit. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this power under the New BC Supreme Court Civil Rules.
In today’s case (Dawson v. Tolko) the Plaintiffs were current and former employees of Tolko Industries. Tolko Industries amended a pension plan it offered it’s employees. During the course of this occurring another Defendant in the lawsuit, Mr. Mercier, assisted and advised Tolko Industries on issues relating to the offer made to the employees to change from a defined benefit pension plan to a defined contribution plan.
The Plaintiff’s sued Tolko and Mercier alleging that they did not act in good faith during this period. Prior to trial the Plaintiffs lawyer examined Mr. Mercier extensively. During the course of the trial the Plaintiffs wished to put Mr. Mercier on the stand.
The Defendant objected arguing that this was not necessary as he would take the stand in the defence and could be cross-examined at that time and further that the Plaintiff could read his discovery evidence in at trial.
Mr. Justice Butler rejected the Defendant’s argument and ordered that he take the stand. In doing so the Court canvassed the power of litigants to put adverse parties on the stand in the BC Supreme Court. In doing so the Court found that authorities developed under the former Rules remain helpful. Specifically Mr. Justice Butler held as follows:
 The Rules provide that the plaintiff may call an adverse party as a witness for cross-examination as part of the plaintiff’s case. This may be done either by delivering the notice (as was done in this case), issuing a subpoena, or calling the adverse party as a witness if he or she is in the courtroom.
 In my decision in Canadian Bedding Company Ltd. v. Western Sleep Products Ltd., 2008 BCSC 1444, I considered an application to set aside a notice delivered under the provisions in the former Rules in circumstances that were very similar to the circumstances in this case. I dismissed the defendant’s application to set aside the notice. In doing so, I examined the three different ways in which an adverse party could be called as a witness in the plaintiff’s case and the differences in the provisions for setting aside the notice or subpoena. The provisions in the current Rules are, with one exception, the same and so my analysis is relevant to the current Rules…
 I agree that the natural unfolding of the narrative can be impacted by use of the adverse party witness rule and that the use of the rule may unnecessarily prolong the trial. However, I do not agree that the adverse party witness rule was intended to be limited to situations where the evidence sought to be elicited cannot be satisfactorily tendered in any other way. The use of an adverse party witness may, in certain circumstances, be an effective way to prove a party’s case. Counsel should not be deprived of that option when the language in the adverse party witness rule does not contain that limitation.
 I have arrived at this conclusion on the basis of my analysis of the former Rules set out in Canadian Bedding. In my view, the differences in the discretion given to a trial judge depending on how the adverse party witness is called to be a witness are important and cannot be ignored.
 The Rules establish a hierarchy of discretionary considerations depending on how the adverse party witness is compelled to testify. When a notice has been properly served pursuant to Rule 12-5(21), the witness and counsel have ample time to prepare for the cross-examination and design a trial strategy to deal with the fact that the defendant will be an adverse party witness. Accordingly, the court is given a limited jurisdiction to set aside the notice. It is only where the “evidence of the person is unnecessary” that the court can set aside the notice. I cannot read Rule 12-5(23)(b) as equivalent to Rule 12-5(39), which states that a subpoena may be set aside where “compliance with it is unnecessary.” The wording of Rule 12-5(39) must encompass a broader range of considerations including a consideration of the steps already taken in the case and whether compliance with the subpoena is necessary for the proper conduct of the trial.
 Further, as I noted in Canadian Bedding, the discretion granted to the court must be exercised with restraint. In De Sousa v. Kuntz (1988), 24 B.C.L.R. (2d) 206 (C.A.), Wallace J.A. cautioned that it was only in a clear case that a judge should exercise his discretion to set aside a subpoena on the ground of necessity. He emphasized, at 214, the need for a judge to be acutely aware that if he sets aside a subpoena:
… he is substituting his view for that of counsel as to the need to subpoena a certain witness and that he will seldom have as complete an appreciation as counsel does of the benefits – both tactical and substantive – that a litigant may derive from calling a certain witness.
That caution applies with equal force in relation to the adverse party witness rules. If plaintiff’s counsel decides to utilize the adverse party witness rule in order to satisfy the onus of proof borne by the plaintiff, the court should be reluctant to interfere.
 In arriving at his conclusion in Strother, I also note that Lowry J.A. specifically stated at para. 43 that he intended “no imposition of any procedural limitation.” If I were to accede to Mr. Mercier’s interpretation of the adverse party witness rule, it would add a gloss that does not appear in the current Rules. It would impose a procedural limitation which does not appear in the adverse party witness rule.
 Mr. Mercier cannot show that his evidence is “unnecessary”. Mr. Poulus’s undertaking to call him as a witness and the fact of the extensive examination for discovery is not relevant to that consideration. Accordingly, I decline to set aside the notice pursuant to Rule 12-5(23)(b).