Tag: examination for discovery

Examination For Discovery and Continuations – A "Heavy Onus"


One of the welcome developments in the New BC Supreme Court Rules is a cap on the length of examinations for discovery.   Examinations in conventional lawsuits are capped at 7 hours under Rule 7-2(a) and limited to 2 hours in Fast Track trials.  The Court has a general power to permit lengthier examinations in appropriate circumstances.
When parties conclude an examination for discovery there are typically requests for further information and parties usually agree to a follow up discovery to address matters arising from the further disclosure.  When a party wishes to further explore a topic already covered, however, they are usually not permitted to have a continuation of the discovery.  Reasons for judgement were released today addressing this area of law.
In today’s case (Lewis v Lewis) the Plaintiff was involved in a 2005 motor vehicle collision.  The Plaintiff alleged injury.  The Defendant denied that she was injured and alleged that her injuries were pre-existing.  In the course of the lawsuit the Plaintiff provided various medical records including pre-accident records.
The Plaintiff attended a discovery and was examined with respect to her injury claim.   After concluding the discovery the Defendants requested a continuation to further explore the issue of the Plaintiff’s pre-accident health.  The Plaintiff opposed arguing that she had already been examined with respect to this topic.  Mr. Justice Harvey agreed with the Plaintiff and dismissed the application for a further discovery.  In doing so the Court provided the following useful reasons:

[8]             The case law stands for the proposition that where a further examination for discovery is sought, there is a heavy onus on the applicant to justify that further examination, and that to justify same they must demonstrate that the complexion of the case has materially changed as a result of the passage of time, new heads of damage are being advanced, or intervening events having occurred since the last discovery, which would materially alter the prosecution of the case and the defence of it.

[9]             Alternatively, a party could produce evidence to show that full and frank disclosure was not made at the first discovery.

[10]         Here that is not the case. Here the defendant, together with its medical advisor, failed to see what was there to be seen. Specifically, each failed to note and act upon the references to previous shoulder complaints in clinical records that were in the hands of both the medical practitioner and the solicitor conducting the discovery.  I am not satisfied that the heavy onus that is set forth in the decisions I have been referred to, one of which was Sutherland (Public Trustee of) v. Lucas, has been met.

[11]         Accordingly the application for a further discovery by the defendant is dismissed.

Examinations for Discovery and Location: When Parties Live Outside BC


I recently looked into the issue of location for examinations for discovery where a party to the lawsuit resides out of the Country.  I came across a useful decision (Bronson v. Hewitt) addressing this issue under the former Rules of Court.
In Bronson, a lawsuit was started in the BC Supreme Court, Vancouver Registry.  The trial was scheduled to be heard in Vancouver and all the lawyers involved in the case practiced in Vancouver.  The Defendants lived in South Carolina.  The Plaintiff wanted to force the Defendants to come to Vancouver for examination for discovery.  The Defendants opposed arguing the discovery should take place in South Carolina.  Mr. Justice Goepel agreed with the Defendants.  In doing so the Court provided the following reasons:

Lewis and Browning rely on R. 27(14).  That Rule reads:

Unless the court otherwise orders, or the parties to the examination consent, an examination for discovery shall take place at a location within 10 kilometres of the registry that is nearest to the place where the person to be examined resides.

Lewis and Browning submit that R. 27(14) supports their contention that prima facie a party has a right to be examined at their residence and that the plaintiffs have not filed any material which would lead the court to rule otherwise.

In Banque Indosuez v. Canadian Overseas Airlines Ltd. et al., [1989] B.C.J. No. 930 (S.C.) Skipp L.J.S.C.  reviewed the authorities and concluded:

I respectfully adopt the reasoning of Trainor J. in Hamstra v. B.C. Rugby Union et al., Vancouver Registry C865223 (B.C.S.C.), to the effect that if anyone seeks to vary the prima facie location being the residence of the person sought to be examined the court then looks at what is just and convenient for the person to be examined rather than for the solicitor of the person to be examined.

In Lo v. Lo[1991] B.C.J. No. 3005 (S.C.) Master Wilson stated:

I understand Banque Indosuez to be authority for this principle, that subrule 14 is the primary determinant of the place for the examination for discovery of persons residing outside of British Columbia.

If the prima facie rule is to be changed then the court looks at what is just and convenient for the person to be examined, not for counsel.

I am of a similar view.  The default position is that non-resident parties are entitled to be examined at their place of residence.  This conclusion is consistent with R. 27(26), which sets out that the rules governing discovery apply so far as practical to persons residing outside the province.   One of those rules is R. 27(14) which sets out that absent consent or a court order, a party is entitled to be discovered at the registry nearest to the party’s residence.  There is no reason why a non-resident party should be treated any less generously than a party who resides in British Columbia.  All parties have a prima facie right to be discovered where they reside.

The court does have the power to order that a discovery take place at a different location.  In making such an order, the court’s main consideration is the convenience of the party being examined.  Convenience of counsel is not a proper basis to compel a party to travel to Vancouver for a discovery.

In the circumstances of this case, it would not be just or convenient to compel Ms. Lewis or Ms. Browning to come to Vancouver.  They are entitled to be examined at their place of residence.  Their discovery will be in Greenville, South Carolina.

This decision was based on the former Rules of Court and to my knowledge no reported decisions address the issue of location for discovery under the New Rules.  The result, however, would likely be identical under the New Rules because the former Rule 27(14) is substantively reproduced at Rule 7-2(11) of the New Rules and the former Rule 27(26) is reproduced at Rule 7-2(27) of the New Rules.

Cross Examination Beats Up RCMP Officer's Injury Claim


As previously discussed, cross examination is one of the most important tools in a trial lawyer’s arsenal.  This tool can be used both during examination for discovery and trial.  Cross examination can be used to explore and weaken an opponents case.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, harshly criticizing an RCMP officer and largely rejecting his injury claim based on evidence elicited during an extensive cross examination.
In today’s case (Lee v. Jarvie) the Plaintiff was involved in a rear-end collision in 2004.  Fault for the crash was admitted.  The trial focused on the value of the Plaintiff’s claim.  The Plaintiff was in the midst of applying for the RCMP at the time of the crash.  He was injured but fortunately was able to complete his application and training and went on to be successfully employed with the police force.
ICBC accepted that the Plaintiff was injured but argued that his injury claim was exaggerated challenging “the authenticity of (the Plaintiff’s) claim“.  Mr. Justice Gaul largely accepted this argument and dismissed a significant portion of the claim.  The below are some of the critical words the Court had of the Plaintiff:
[46] Mr. Lee was vigorously cross-examined by counsel for the defendants. By “vigorous” I do not mean the questioning was improper or disrespectful of the witness. I find the extensive cross-examination of Mr. Lee successfully revealed a number of significant and illuminating facts that, but for their disclosure, the court would have been left with an inaccurate impression and understanding of Mr. Lee’s situation and condition…
[71] In addition to eliciting important facts that have placed Mr. Lee’s claim in a more fulsome context, counsel for the defendants was also able to expose a number of contradictions and inconsistencies in Mr. Lee’s evidence, of which I will address but a few…
[81] While I am hesitant to find Mr. Lee fabricated his evidence on this point, I do find him to be an unreliable and inaccurate historian with respect to the amount and frequency of medication he has been taking…
[86] In great measure I agree with the submission of the defence that Mr. Lee’s evidence shifted during the course of his testimony and at times contradicted what he had said previously at his examination for discovery. On occasion I also found myself simply disbelieving Mr. Lee….(some of his evidence) stretches the boundaries of belief beyond their limits…
[87] In general, I found Mr. Lee to be less than forthright during his evidence and on more than one occasion I found him to be deliberately evasive in answering the question asked of him…
[89] It was only on account of detailed and probing cross-examination that a number of important and salient facts relating to Mr. Lee’s claim were disclosed or clarified. These details placed Mr. Lee’s claim in a markedly different light to the one based solely on what he said in his examination-in-chief. This, in conjunction with the inconsistencies or contradictions that were exposed in Mr. Lee’s evidence, compels me to approach his evidence with caution and scepticism. In general, I am not satisfied with Mr. Lee’s evidence. Unless I have indicated otherwise in these reasons, where there is a conflict between Mr. Lee’s evidence and that of another witness, I have given greater weight to the evidence of the other witness.
Further to my previous posts on credibility, cases such as today’s are worth reviewing in full to get a sense of the types of factors trial judges take into consideration in weighing the evidence of a party.  Today’s case in particular is a good introduction to cross examination in injury claims because the Court reproduces extensive portions of the Plaintiff’s cross examination and explains the damaging effect this had on his credibility.

Late Examinations for Discovery and the New BC Supreme Court Rules


Reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, discussing the right to conduct an examination for discovery in the two weeks proceeding trial under the New Civil Rules.
In today’s case (Lewis v. Lewis) the Plaintiff sued for damages as a result of injuries sustained in a motor vehicle collision.  ICBC was a statutory third party in the lawsuit and failed to exercise their right to examine the Plaintiff for discovery in a timely fashion.  ICBC served the Plaintiff with an appointment to attend a discovery 10 days before trial.  The Plaintiff objected arguing, amongst other things, that discoveries are not permitted within the two weeks prior to trial.  ICBC applied for an order compelling the Plaintiff to attend.
In support of their application ICBC argued that the prohibition preventing discoveries in the two weeks preceding trial no longer exists in the new BC Supreme Court Civil Rules.   Mr. Justice Harvey, while not directly addressing this issue, dismissed ICBC’s motion and in doing so made it clear that the rules of Court operate so as to make it difficult for a party to be permitted to conduct a late discovery.  Mr. Justice Harvey provided the following reasons:
[7]  In response to (ICBC’s argument) Mr. Parsons, on behalf of the plaintiff, says that a clear reading of Rule 12-4(3) makes clear that the new rules still contemplate a prohibition against any step, including an examination for discovery, within the period prescribed in Rule 12-4(2).
[8] Rule 12-4(2) reads
A trial certificate must be filed at least 14 days before but not more than 28 days before the scheduled trial date.
[9] I am not persuaded in these circumstances I need to decide that very interesting issue, because I have also been referred to Rule 12-4(6) which says that:
A party who fails to file a trial certificate under subrule (1) is not, without leave of the court, entitled to make further applications.
[10]  The third party has not filed a trial certificate nor could they have given the requirement to have conpleted examinations for discovery as part of the requirement of “readiness”.  Now, 10 days before trial, it is too late to do so.
[11]  Counsel for the third party see this as an excuse allowing them to, at this late date, seek the Court’s leave for the application to compel the plaintiff’s attendance at the proposed discovery.
[12]  That, with respect, is disingenuous.  It has been open to the third party to conduct its discovery since the time it became a party.  That was in October of 2008.
[13]  Instead, the third party has chosen to rely on the defendant to take the lead in this litigation…
[14]  The third party has, at the last moment, unilaterally set down an examination for discovery over the objections of counsel for the plaintiff as to timing.  Counsel is busy with trial preparation for a 15 day jury trial.
[15]  The third party failed to provide conduct money and failed to file a trial certificate in accordance with the rules…
[16]  Contrary to the Rules, leave was not sought to bring the application when short leave was sought before the Master who heard the application.  The application for short leave was brought without notice and counsel for the plaintiff was unable to draw to the Court’s attention the failure of the third party to (1) require leave for their application and (2) failure to provide conduct money to the plaintiff.
[17]  In those circumstances, I am not prepared to gran the third party the leave required to bring this motion.

The New Rules of Court and Examinations for Discovery


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing the scope of permissible questions at examinations for discovery under the new Civil Rules.  In short, the Court noted that although the New Rules contain some changes with respect to the time permitted for discovery, precedents developed under the former rules remain good law with respect to permissible questions.  The court also addressed the factors that can be considered in extending an examination for discovery.
In today’s case (Kendall v. Sun Life Assurance Company) the Plaintiff had disability insurance with the Defendant.  The Plaintiff sued claiming the Defendant improperly denied her insurance benefits.  In the course of the lawsuit the Plaintiff examined a representative of Sun Life for discovery.  During the course of discovery Sun Life’s lawyer caused “so much disruption” with interfering objections that Plaintiff’s counsel terminated the examination prematurely and walked out.
The Plaintiff brought a motion compelling the representative to attend discovery again to complete the examination, to answer the questions that were objected to and to extend the time of discovery beyond the permitted 7 hours.  Madam Justice Griffin granted the motion and in doing so made the following comments about the scope of permissible discovery questions under the new rules:

[6]             Rule 7-2(18)(a) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules of Court] sets out the scope of examination as follows:

(18)      Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, …

[7]             Despite a variety of substantive changes to the Rules of Court enacted effective July 1, 2010, the scope of examination for discovery has remained unchanged and is very broad….

[13]         While the scope of examination for discovery has not changed with the new Rules of Court brought into force on July 1, 2010, the length of examination for discovery is now limited to seven hours or any greater period to which the person to be examined consents: Rule 7-2(2).

[14]          The newly imposed time limit on discovery makes it all the more important that the courts enforce the principle that counsel for the examined party must not unduly interfere or intervene during the examination for discovery.  The time limit imposes a self-policing incentive on the examining counsel to be focused and to not waste time on questions that will not advance the purpose of investigating the case or obtaining admissions for use at trial.

[15]         While the time limit on examination for discovery creates an incentive on the examining party to be efficient, it unfortunately also creates a risk that counsel for the examinee will be inefficient by unduly objecting and interfering on the discovery, for the purpose of wasting the limited time available.  If that party is economically stronger than the examining party, it also can strategically increase the costs of litigation this way, by burdening the financially disadvantaged party with having to bring a court application to obtain a proper discovery.

[16]         The proper conduct of an examination for discovery within the spirit of the Rules thus relies on the professionalism of counsel for the party being examined.

[17]         As held by the Ontario Superior Court in Iroquois Falls Power Corp. v. Jacobs Canada Inc. (2006), 83 O.R. (3d) 438 at para. 4:

Improper interference by counsel in the other party’s discovery undermines the purposes of discovery, prolongs it, fosters professional mistrust and generally offends the overall purpose of the Rules….

[18]         A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery. ..

[52] In summary, the majority of objections made were not valid. The objections were undue interference in the flow of the examination for discovery.  It may or may not be the case that some of the questions were worded awkwardly and may have been seeking evidence of marginal relevance.  The examining party who frames questions badly runs the risk that the evidence obtained will end up being of no value.  Nevertheless, considerable respect ought to be shown for the professional judgment of counsel for the examining party on how to best approach an examination for discovery.  It is not up to counsel for the party being examined to dictate the opposing side’s decisions on which relevant areas of questioning should be the focus of the discovery.  It is also not in accord with the object of proportionality to make it the function of the court to become involved in micro-managing examination for discovery questions.

In addition to the above this case is worth reviewing in full for the Court’s discussion of the many specific objections that were raised.  In particular, the Court held that it is permissible in lawsuits for denied insurance benefits to ask the insurer’s representative about their general practices.

BC Injury Claims, Pre-Trial Discovery and "Mental Incompetence"


When suing for damages as a result of personal injuries the BC Supreme Court Rules generally permit Defendants to compel Plaintiffs to participate in pre-trial examinations for discovery.  There are a few exceptions to this and one of these relates to mentally incompetent Plaintiffs.  If a Plaintiff is mentally incompetent they can only be examined with permission from the Court.  Reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In this week’s case (DeMerchant v. Chow) the Plaintiff sustained a serious brain injury during a fall from a ladder in 2007.  The Plaintiff started a lawsuit in the BC Supreme Court through a litigation guardian.  During the course of the lawsuit the Plaintiff refused to participate in a discovery.  The Defendant brought a motion seeking an order that he be forced to participate.  The Plaintiff opposed this and relied on medical evidence which opined that the Plaintiff “could not reliably answer questions put to him” and that he “does not have the capacity to give testimony in court“.
Ultimately Master Taylor dismissed the motion and refused to grant the defendant permission to examine the Plaintiff.  This is the first case I’m aware of applying the new BC Supreme Court Rule 7-2(9) which deals with discovery of mentally incompetent parties.  Master Taylor provided the following reasons in dismissing the application:

[2]             The application is made pursuant to Rule 7-2(9) of the new Rules which was formerly Rule 27(11) of the old Rules.  The wording of both rules is similar, but the new Rule has changed the wording somewhat.  The new Rule provides:

7-2(9) If a party to be examined for discovery is a mentally incompetent person, his or her litigation guardian and his or her committee may be examined for discovery, but the mentally incompetent person must not be examined without leave of the court.

[34]         The question to be determined, therefore, is whether the evidence before me is sufficient to find that court approval should be granted to allow the plaintiff to be examined for discovery.

[35]         In Penn v. Secord (1979), 16 B.C.L.R. 48, [1980] 1 W.W.R. 464, 106 D.L.R.(3d) 9 Ruttan, J. said the onus for showing that a party is competent to be examined rests on the party seeking his examination. In the case at bar, the onus rests on the defendants.

[36]         The Rule in question uses the term, “a mentally incompetent person”.

[37]         It has been assumed up to now that Mr. DeMerchant is a mentally incompetent person because he has a trustee and a litigation guardian.  As well, the very nature of the application assumes the plaintiff is a mentally incompetent person since the application seeks leave of the court to examine him.

[38]         According to section 29 of the Interpretation Act, a “mentally incompetent person” is a “person with a mental disorder as defined in section 1 of the Mental Health Act”.

[39]         Reference to the Mental Health Act reveals the definition of a “person with a mental disorder” as “a person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability (a) to react appropriately to the person’s environment, or (b) to associate with others”…

[45]         In the case at bar, there is medical evidence which conflicts, however I am satisfied that Drs. Bogod and  Lu have provided sufficient medical evidence  to suggest that the plaintiff does confabulate and would be unreliable as a witness.

[46]         I am also satisfied that the evidence of Drs. Bogod and Lu establish that the plaintiff meets both tests set out in the definition of a person with a mental disorder.

[47]         Accordingly, I determine that the applicants have not met the onus imposed upon them in seeking an order that the defendants be granted leave to examine the plaintiff at discovery.  It should also go without saying that I do not find the plaintiff to be competent to give evidence on his own behalf in these proceedings.

[48]           Consequently, I dismiss the defendants’ applications with costs to the plaintiff in any event of the cause.

Taking the Mystery Out of Examinations For Discovery

As I previously discussed in the below video, examination for discovery is a process where the opposing side in a BC Supreme Court lawsuit can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case.  It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s performance can play a key role in whether the case settles or proceeds to trial.
Most people have some anxiety and apprehension before discovery.  One reason for this is because the discovery process is unfamiliar and often Plaintiff’s don’t know what to expect.  The best way to ease this anxiety is to learn about the process ahead of time.  To that end I’ll let you in on a secret:  Most Defence lawyers in ICBC claims use a cheat sheet to guide their questions.  This cheat sheet is the Law Society of BC Practice Checklists Manual and the most up to date version was recently released by the BC Law Society.  You don’t need to be a lawyer to get a copy, it’s available free on-line and can be found here.
Most ICBC defence lawyers use this or a similar checklist to structure their questions.  More junior lawyers typically follow the script fairly closely while more experienced lawyers deviate frequently.  Whoever your opposing lawyer may be you can bet they will cover many of the topics highlighted on this checklist at your examination for discovery.
If you spend some time going over this form you will learn not only what types of areas will be covered at your discovery but also why these questions will be asked.  With this knowledge hopefully the discovery process will be a little less mysterious and less stressful.

Examinations For Discovery and Your BC Injury Claim – A Video Introduction

Here is a video I’ve uploaded to YouTube discussing examinations for discovery in BC Injury lawsuits:

An Examination for Discovery is a process where the opposing side can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case.  It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s evidence can play a key role in whether the case settles or proceeds to trial.
In ICBC claims some of the usual topics that are covered are the circumstances of the accident, the injuries sustained, the expenses incurred, the course of recovery of the injuries, wage loss details and other the effects of the accident related injuries on lifestyle  (You can click here to read a more in depth article about what is covered at a Discovery).
I hope this introductory video and the linked articles take some of the mystery out of the process.

More on ICBC Injury Claims and Pre Trial Discovery – XFD's and Requests for Particulars

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry dealing with 2 types of pre-trial discovery procedures utilized in the Supreme Court, the scope of examination for discovery questions and requests for particulars.
In today’s case (Gulamani v. Chandra) the Plaintiff alleged injury from 2 motor vehicle collisions some 10 years apart.  The Defendant put together a rather ‘boilerplate’ statement of defence which alleged, amongst other things that the Plaintiff was injured in previous and/or subsequent incidents, that the Plaintiff failed to follow medical advice, that the Plaintiff failed to take appropriate medications and that the plaintiff  did not return to work when she reasonably could have.
The Plaintiff’s lawyer brought an application that the Defence lawyer provide better particulars of these allegations (these types of boilerplate allegations are very typical in Statements of Defence filed in BC Personal Injury Actions).
In granting the Plaintiff’s request for further particulars Madam Justice Arnold-Bailey summarized and applied the law as follows:

[27] The court has the discretion, under Rule 19(16), to order a party to deliver better and further particulars of a matter stated in a pleading, provided that the party seeking that order has demanded them in writing from the other party, as required by Rule 19(17).

[28] It is clear from the case law that the decision to order particulars is extremely discretionary and heavily fact dependent.

[29] Considering the cases provided by counsel on this issue, my view is that the request for particulars is very similar to the previously granted request for further particulars made by counsel for the plaintiff of the Chandra defendants.  Here, as in that motion, what has been provided is so broadly worded and generic that it tells the plaintiff virtually nothing as to the true nature of the case she has to meet with regards to her alleged congenital defects or diseases prior to or post-accident, or regarding aspects of her alleged failure to mitigate.  Such broadly worded statements are particularly problematic in the present case because of the plaintiff’s extensive history of medical treatment over the past 12 years, since the injuries allegedly sustained in the first accident are said to overlap with the injuries sustained in the second accident with the defendant.

[30] I do not find the decisions in Fireside or Hoy provided by counsel for the defendant to be of assistance in this case.  While they are both examples of cases in which particulars were not ordered, they are both easily distinguishable from the case at bar.  Hoy deals with specifics on standard of care in a class action matter, where significant particulars had already been provided.  Fireside was a case where more than a generic particular had already been provided to the plaintiff.  In the case at bar there have been no particulars provided at all with regard to the broad claims contained in the statement of defence.

[31] The Court of Appeal clearly stated the function of particulars in Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 (C.A.) [Cansulex], where Lambert J.A., for the court, described their use at para. 15:

(1)        to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(2)        to prevent the other side from being taken by surprise at the trial;

(3)        to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(4)        to limit the generality of the pleadings;

(5)        to limit and decide the issues to be tried, and as to which discovery is required; and

(6)        to tie the hands of the party so that he cannot without leave go into any matters not to be included.

[32] I now turn to the specific point set out in para. 15 of Cansulex that particulars are designed “to inform the other side of the nature of the case they have to meet”.  In my view, the statements made in the statement of defence are not sufficient to enable the plaintiff to know the case she must meet.

[33] Considering further the points contained in para. 15 of Cansulex, in this case I find that if further and better particulars are not provided by the defendant as to how to the plaintiff failed to mitigate her losses generally as claimed and with regards to her alleged failing to take reasonable steps to return to work, failing to follow medical advice and failing to follow exercise advice, then if there is any substance to these claims, it is likely she will be taken by surprise at trial.  The same may be said with regards to any other incidents or congenital defects or diseases that the defendant alleges caused the plaintiff’s injuries.

[34] I turn to additional points set out at para. 15 of Cansulex, requiring that the particulars must “enable the other side to know what evidence they ought to be prepared with and to prepare for trial”.  Based on what has been provided to date to the plaintiff, I do not see how proper trial preparation could be done.

[35] With regards to the further points from para. 15 of Cansulex regarding the purpose of particulars, “to limit and generality of pleadings” and “to limit and decide the issues to be tried”, once apprised of her alleged failure to mitigate the plaintiff will be able to take steps to collect the relevant evidence with regard to the specific failures or conduct alleged.  As indicated, the alleged overlap between the plaintiff’s injuries from the first accident in June 1997 to the alleged injuries from the second accident in July 2007, add considerable additional factual complexity.

[36] Regarding the final point in Cansulex at para. 15, that particulars serve to “tie the hands of the party so he cannot, without leave, go into any matters not included”, I find that there is considerable benefit to all parties in these actions to be tried together in the upcoming 30 day trial to properly identify and limit such claims.

[37] When considering an application for the delivery of further and better particulars, Bouck J. made a comment in Cominco Ltd. v. Westinghouse Can. Ltd. (1978), 6 B.C.L.R. 25 at 27 (S.C.). at paras. 7-8, which I consider to be relevant to the present application, namely:

Occasionally parties can get caught up in the fascination of the interlocutory process and lose sight of the fact that some day the matter must go to trial even though a “perfect” framework does not exist for its presentation.  Sometimes as well one side or the other is merely replying to the overzealousness of his opponent and motions or their opposition are meant to let one another know it will be a long hard fight.

I mean no criticism of counsel by these remarks.  They are honestly trying to pursue every recourse for the benefit of their respective clients.  That is their right and their duty.

[38] For these reasons the plaintiff’s application for further particulars is granted.

The second pre-trial procedure dealt with in today’s case was the scope of examination for discovery questions.  On examination the Plaintiff’s lawyer asked the Defendant to provide his cell phone records (to help prove or disprove that he was on the phone at the moment of impact), to provide the names of “liability and damage witnesses and contact information”.  In holding that these are proper discovery questions Madam Justice Arnold Bailey applied and summarize the law as follows:

[39] With respect to question (a) and the demand for cellular phone records, Rule 27(20) states that “a person to be examined for discovery… shall produce for inspection on the examination all documents in his or her possession or control not privileged, relating to the matters in question in the action”.

[40] Liability is at issue and the potential for the cellular phone records to indicate whether the defendant was using his phone at the time of the accident does exist.  Although not referred to any authorities by counsel, I note that there are several cases where cellular phone records have been referred to as to whether a person was using the cellular phone at the time of the accident.  One such case is Abay v. Keung, 2006 BCSC 1236, in which the plaintiff testified that the defendant had been using a cellular phone at the time of the accident, and the defendant denied doing so.  The defendant there had also refused to divulge his cellular phone records on examination for discovery.  There is no record of a demand being made for those records.  In that case, Cohen J. found, at para. 73, “although I find that the defendant had a cell phone in his vehicle, I cannot conclude that the defendant was talking on the cell phone at the time of the collision, as there is strongly conflicting evidence on this point”.  Cohen J. did not comment on the lack of records as affecting credibility or believability of the defendant.

[41] Conversely, in Zubko v. Ezaki, 2002 BCSC 1894, the defendant produced her cellular phone records to prove conclusively that she was not speaking on her phone at the time of the accident, as was alleged by the plaintiff.

[42] While I agree with the submission on behalf of the defendant that the phone records will not necessarily show with certainty whether the defendant was talking on the phone at the time of the accident, it seems that those records are within the scope of Rule 27(20) insofar as they relate to the matters in question in the action, namely liability for the motor vehicle accident.  It is entirely possible that the records will prove to have little weight at trial, but that is irrelevant to what is required by Rule 27(20).  Accordingly, I order the defendant to provide the answers to questions 68 – 71 of the examination for discovery, including providing his cell phone records for the day of the accident.

[43] With regard to question (b) and the names and contact information of liability and damage witness names, I agree with the reasoning in Sovani, at para. 3, where Paris J. held “Rule 27(22) means just what it says, namely, that the names and addresses of such persons must be disclosed if requested and the fact that a person’s knowledge relates only to the issue of damages does not safeguard the names from disclosure”.  Accordingly, I order the defendant to answer question 276 and as posed on p. 63 of the examination for discovery.

Lastly, since this is a case dealing with Civil Procedure, it is my practice to check if this case will remain a useful precedent when the new BC Supreme Court Civil Rules come into effect in July, 2010.  The answer is probably yes as the current Rule 19(16)(17) which the court relied on in its order for further particulars remains intact under the new rules and can be found at Rule 3-7(22).

With respect to the order addressing examinations for discovery, this case relied on Rule 27(20) which remains largely intact under the new Supreme Court Rules and can be found at Rule 7-2(16).  While the new rule seems to have some restrictions to it not present in the current rule the same result should arguably apply as the rule for production of relevant documents at the discovery will continue to apply to “a person for whose immediate benefit an action is..defended” as set out in Rule 7-2(6).

Damaging Your Opponents Case at Trial Through Examinations for Discovery

Examinations for Discovery in ICBC Claims are conducted for 2 primary reasons.  The first is to learn about your opponents claim, the second, and perhaps equally important reason is to get admissions which can be used against your opponent should the claim proceed to trial.
When a damaging answer from an examination for discovery is read into evidence at trial it can have the same impact as if the damaging fact was testified to live in court.  If a discovery answer contradicts evidence given at trial this can have an impact on credibility and can significanty effect the outcome of trial.
Rule 40(27) of the BC Supreme Court Rules addresses the use of discovery evidence at trial.  This Rule, however, imposes certain limits on the abilities of opponents to use transcripts at trial.  Specifically one limitation contained in the Rule states that the evidence is ‘admissible only against the adverse party who was examined…’

This limit should be kept in mind when suing multiple defendants and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this evidentiary limitation in an injury claim trial.

In today’s case (MacEachern v. Rennie) the Plaintiff sued multiple parties for damages as a result of serious injuries.  At trial the Plaintiff sought to read in portions of the Defendants examinations for discovery.   The Plaintiff sought to have some of this evidence ‘used not only against the party who was examined, but also against all the other defendants‘.  Mr. Justice Ehrcke rejected this argument and folowed the strict reading of Rule 40(27) limiting the use of the answers only against the defendants who gave them.  The Court summarized and applied the law as follows:

[13]         In any event it must be noted that the Rules of Court were amended in 1985 and again in 1992. The current form of Rule 40(27) is not the same as the rule upon which McEachern C.J.B.C. was commenting in Foote v. Royal Columbia Hospital. In 1982 there was nothing equivalent to the current Rule 40(27)(a).

[14] I find that the current law is correctly stated in Fraser and Horn, The Conduct of Civil Litigation in British Columbia, Vol. 1 looseleaf (Markham:  LexisNexis Canada Inc., 2006) at paragraph 18.10:

An amendment to Rule 40(27)(a) in 1992 re-affirmed the long-standing jurisprudence that the testimony of a party on discovery was not admissible against his co-party. In 1986 the traditional rule had been held to have been superceded as a result of a rule amendment in 1985. Because of the 1992 amendment, it is once again the law that the evidence of one person on an examination for discovery is not ordinarily admissible against a co-party.

[15] Accordingly, the questions and answers from the examination for discovery of Mr. Rennie requested by the plaintiff and the additional questions 396 and 397, along with their answers, shall be read into evidence at trial, but they do not constitute direct evidence against any of the defendants except Mr. Rennie.

This decision serves as a good reminder that when ICBC Injury Claims are prepared for trial care should be taken to ensure there is admissible evidence against all of the Defendants for all matters in issue.

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.

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