Tag: describing privileged documents

Surveillance Evidence Excluded From Trial for Failure of Disclosure


(Note: The Decision discussed below was overturned by the BC Court of Appeal on August 25, 2011)
As I’ve previously written, the Rules of Court require parties to a BC Supreme Court Civil Lawsuit to disclose relevant documents to opposing parties.  Some documents are privileged and need not be exchanged but their existence needs to be disclosed and these documents need to be described “in a manner that, without revealing informaiton that is privileged, will enabel other parties to assess the validity of the claim of privilege“.  Failure to do so can result in exclusion of the documents from trial.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law.
In today’s case (Houston v. Kine) the Plaintiff was injured in a 2006 motor vehicle collision.  The Defendant admitted responsibility for the crash.  The Plaintiff sustained various  injuries including a major depressive disorder, pain disorder, anxiety disorder and PTSD following the collision.  Madam Justice Gropper found that the collision was responsible for these injuries and assessed the Plaintiff’s damages at $525,000.
There was a 5 month break from the beginning of the trial to its conclusion.  During this break ICBC undertook surveillance of the Plaintiff over two periods of time.  The Defence lawyers, however, failed to disclose this evidence in compliance with the Rules of Court.  When they attempted to put the video into evidence the Plaintiff objected.  Madam Justice Gropper sided with the Plaintiff and held that the evidence should not be admitted.  In reaching this conclusion the Court provided the following helpful reasons:

[11] The burden on the party seeking to tender the undisclosed document is to establish to the Court’s satisfaction a reasonable explanation for the failure to disclose. As Henderson J. stated inCarol v. Gabriel (1997), 14 C.P.C. (4th) 376, 75 A.C.W.S. (3d) 858:

[9]        A party tendering a previously undisclosed document must establish to the court’s satisfaction a justification for the failure to abide by Rule 26(14). The question of whether the opposite party will be prejudiced by the admission of the document is always relevant but is not, in and of itself, decisive. Even in cases where no prejudice will ensue from the admission in evidence of the document, it will be excluded unless there is a reasonable justification for the earlier failure to disclose it. To hold otherwise would be to dilute the disclosure obligation and tempt counsel to refrain from disclosing in situations where they do not expect any prejudice to result.

[12] Here, the explanation for the failure to disclose is that the videos are not documents and they were never in the defendants’ possession or control. Rather, these videos and the accompanying reports fall clearly within the solicitor’s brief.

[13] The defendants’ position that it is sufficient that the videos and background materials were disclosed in March 2010, before the recommencement of the trial does not address the requirement of the Rule in 23(13) that the disclosure be “forthwith.” Not disclosing, as a matter of strategy, is not a satisfactory explanation to address the “forthwith” requirement.

[14] It is therefore my view that the videos have not been disclosed in accordance with R. 26(13) and I must therefore consider whether I ought to exercise my discretion to allow the Mexico video into evidence in accordance with R. 26(14).

[15] The factors to be considered are described by the Court of Appeal in Stone v. Ellerman, 2009 BCCA 294; 273 B.C.A.C. 126; [2009] 9 W.W.R. 385; 71 C.P.C. (6th) 25; 92 B.C.L.R. (4th) 203; 2009 CarswellBC 1633, at paras. 30 and 31. They are:

1.         prejudice to the party, in this case the plaintiff;

2.         whether there was a reasonable explanation for the other party’s failure to disclose;

3.         whether excluding the document would prevent a determination of the issue on the merits; and

4.         whether in the circumstances of the case the ends of justice require that the document be admitted.

[16] Addressing the prejudice to the plaintiff, it is difficult for me to assess the prejudice versus the probative value issue as I have not seen the videos and I have not reviewed the investigators’ notes of the video. I note in addressing this factor that there were hours of video recorded and the defendants’ counsel has provided a summary of what is contained in the videos. Based upon that, I am not satisfied that the videos are sufficiently probative to outweigh the prejudice to the plaintiff in allowing their admission having not been disclosed forthwith on a supplementary list of documents. This is despite the assertion that the plaintiff “lived” the events and that she would not be surprised by the contents. She has given evidence and called her medical and functional capacity experts. The late disclosure of the video evidence has impaired the ability of the plaintiff to meet the evidence.

[17] The admission of the videos and notes may require that she be recalled, or that she recall some of the experts. These days were added to the trial for its conclusion. The admission of the video evidence will necessarily extend the trial.

[18] In relation to the second factor, whether or not there was a reasonable explanation for the parties’ failure to disclose, I have already determined that strategy does not provide a reasonable explanation for lack of disclosure. Rule 26(13) requires that supplementary documents are to be disclosed forthwith and they were not.

[19] Concerning the third factor, whether the document would prevent the determination of the issue on the merits, I have heard evidence including the plaintiff’s evidence and the defendants’ evidence and expert evidence about the plaintiff’s activity and her level of disability. Based on the summary provided by counsel for the defendants of the contents of the video I cannot conclude that I will be prevented from determining the issue on the merits.

[20] Finally, I am not persuaded that the ends of justice require that videos be admitted.

[21] I therefore find that the videos are not admissible.

Interestingly, Madam Justice Gropper went even further and held that the witnesses who made the videos could not testify as to their observations of the Plaintiff as doing so would undermine the decision to exclude the video evidence.  The Court’s reasoning behind this decision could be found at paragraphs 22-28 of Appendix A to the Reasons for Judgement.

BC Court of Appeal Discusses Documents Used in Cross Examination and Disclosure Requirements

Further to my recent post discussing this topic, reasons for judgement were released today by the BC Court of Appeal discussing parties responsibilities to disclose documents they intend to use at trial for cross-examination purposes.
In today’s case (Cahoon v. Brideaux) the Plaintiff was injured in a BC motor vehicle collision.  The crash was described as a “minor rear ender“,  Despite the minor vehicle damage the Plaintiff claimed serious and prolonged injuries.  She asked the jury to award her damages of over $1.3 million.  The jury rejected much of the Plaintiff’s claim and assessed damages of just over $34,000.
The Plaintiff appealed on various grounds arguing that she was deprived of a fair trial.  One of the arguments on appeal was an allegation that the Defence lawyer ‘ambushed‘ the Plaintiff during cross examination by using a document that ‘had not been properly described in the list of documents’.  Specifically the Plaintiff testified during trial that she had “clear title” on her home.  The Defence lawyer then challenged this with a copy of a mortgage which contradicted the Plaintiff’s evidence.  This document was listed on the Defence Lawyer’s list of documents but was not identified in a clear manner.
The BC Court of Appeal held in 2 recent cases (click here and here to read about these) that if parties fail to adequately describe privileged documents in their list then the evidence may not be allowed in at trial.  The Plaintiff cited these cases as precedents.  The Court of Appeal rejected the Plaintiff’s argument and distinguished these cases.  In concluding that no prejudice arose from the failure to adequately describe the mortgage document the Court provided the following reasons:

[39] However, in this case, no similar prejudice resulted from the failure of the respondents to describe the mortgage copy in compliance with Rule 26(2.1) since the trial was already underway when the document came into existence and into the possession of defence counsel.  Moreover, in contrast to Stone, the information in the copy document was known to Mrs. Cahoon – the original mortgage was her own document.  In the context of this discussion, the photocopy was evidence of an inconsistent out-of-court statement made in writing by Mrs. Cahoon before the trial.  I do not understand Stone to stand for the proposition that cross-examining counsel’s possession of such evidence must be disclosed to the witness before cross-examination on the statement will be permitted or, to frame the proposition as Mrs. Cahoon frames it, that to permit cross-examining counsel to surprise a witness with such a statement is improper “trial by ambush”.  Such a rule would insulate witnesses against the effects of cross-examination on prior inconsistent statements and would undermine the search for truth in the litigation.  As well, it would be contrary to the purpose identified in Blank for which litigation privilege is granted.

[40] In summary, Mrs. Cahoon made false statements (that her home was “clear title” and that she had no mortgage on it, let alone one for $800,000) and defence counsel confronted her with the copy of the mortgage and demonstrated the falsity of her earlier answers.  Mrs. Cahoon gave an innocent explanation for her false answers – she said she had been mistaken – and she amplified her explanation in re-examination.  Her counsel called further evidence from the credit union’s solicitor to explain the transaction and to support Mrs. Cahoon’s explanation of her inconsistent answers.  Counsel for both parties addressed the jury as to the weight and significance they should attach to this evidence.

[41] All of this was relevant to Mrs. Cahoon’s credibility, which was a central issue in the case.  There was nothing improper or unfair in the way in which defence counsel dealt with this evidence at trial and I would reject this ground of appeal.

This case is worth reviewing in full for all BC injury lawyers.  In addition to the above topic, the BC High Court gives extensive reasons on the role of lawyers in advancing their client’s claims and the type of arguments that are permissible before juries.

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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.

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