Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering that no surveillance evidence is to be used at a trial where the existence of that evidence was not adequately disclosed.
In the recent case (Cavouras v. Moscrop) the Plaintiff was injured in a collision and sued for damages. ICBC, the insurer for the Defendant conducted surveillance of the Plaintiff and this was not disclosed in a timely fashion in the course of litigation. The Defendant conceded that they did not intend to use the evidence at trial but the Court, via a trial management conference, concluded it would be appropriate to go further and order that the evidence simply could not be used in these circumstances.
In reaching this decision Master Muir provided the following reasons:
Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dealing with document production requests in an ICBC Claim.
In this week’s case (Polianskaia v. Melanson) the Plaintiff was a passenger in a vehicle driven by her mother. She was involved in a crash with the Defendants vehicle which apparently “failed to yield the right of way to the Plaintiff’s vehicle“. The Plaintiff was injured and sued for damages.
Following the collision the Plaintiff’s mother (who was not a defendant in the lawsuit) “signed a written statement prepared by a representative of ICBC“. The Defendant did not disclose this document in their list of documents. The Plaintiff brought an application to compel production. The Court granted this application and provided the following reasons:
This second aspect of the plaintiff’s application is more straightforward.
There is no evidence before the court which suggests that ICBC might have a statement from the plaintiff herself. The evidence addresses only the possible existence of statements made to ICBC by each of the plaintiff’s parents.
The plaintiff’s mother deposes to having signed a written statement prepared by a representative of ICBC. Through defence counsel’s correspondence, the existence of such a statement is denied. The correspondence is not sworn evidence of either indirect or direct knowledge of the existence of this statement. In those circumstances, the court has no reliable evidence to weigh against the contrary evidence of the plaintiff’s mother. In the absence of such evidence, the order will go that ICBC is to produce to the plaintiff any written statement in its possession or control signed by Elvira Polianskaia.
This week the BC Court of Appeal released reasons for judgement ordering a new trial following a chronic pain case which resulted in a $525,000 damage assessment.
In this week’s case (Houston v. Kine) the Plaintiff was injured in a 2006 collision. She allegedly suffered from PTSD and a chronic pain disorder as a result of the crash. The matter went to trial although did not conclude in the time initially allotted.
There was a 5 month gap before the trial recommenced. 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. As a result the trial judge refused to let the evidence in. The Court went further, however, 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 Defendants appealed arguing that the witnesses were wrongly excluded. The BC Court of Appeal agreed and found that while “the defendants’ choice at trial to withhold the existence of the videotapes….was inappropriate” and that this evidence was rightly excluded it was improper to exclude the witnesses themselves to testify. In ordering a new trial the BC Court of Appeal provided the following reasons:
The obvious difficulty with the viva voce evidence was that the observers were unknown to the defendants prior to the hiatus in the trial. The earliest that they could have been identified was in November of 2009. By then, the plaintiff’s preparation for trial was all but over. To constrain the defendants’ ability to react to the plaintiff’s evidence to “prevent surprise or ambush” in my view unfairly restricted their ability to have the proceeding determined on its merits. As the trial judge accepted that there was no restriction on calling lay witnesses, she erred in imposing that restriction respecting witnesses who could comment on the plaintiff’s activities during the hiatus in the trial.
The trial judge’s second reason for refusing to allow the observation witnesses to testify was that:
It would be inconsistent with my previous order and with the objects of the Rules, expressed in R. 1(5), “to secure the just, speedy and inexpensive determination of every proceeding on its merits,” to allow the defendants to, in effect, ambush the plaintiff with this evidence, which has been disclosed only recently.
In my view the trial judge here misapplied Rule 1(5), focussing on speed in the completion of the proceedings at the expense of their merits. The Rule and the third factor in Stoneemphasize the importance of the determination of a proceeding on its merits. In order to determine a proceeding on its merits, the admissible evidence that is tendered by a party and is relevant to matters in issue should be considered.
In addition, given that the original trial estimate was exceeded by the plaintiff’s case, necessitating the adjournment of the trial that caused the hiatus that brought about the acquisition of new evidence by the defendants, I am unable to accept that the delay resulting from the proposed evidence should have been treated any differently from the delay that was occasioned by the initial inadequate trial time estimate. The failure to do so prevented the determination of these proceedings on their merits. I conclude that the trial judge erred in law in refusing to permit the witnesses to give viva voce evidence at the trial…
Here, the credibility of the plaintiff was a critical factor in the trial judge’s assessment of quantum, and the evidence of the observers was intended to directly address the plaintiff’s credibility. In my view, the refusal of the trial judge to permit the defendants to adduce evidence to challenge the plaintiff’s physical abilities at the date of the trial was unfair, and given the importance of this evidence to the ultimate award of damages for future diminished earning capacity and future cost of care, I see no alternative but to order a new trial on damages. I would thus allow the appeal and order a new trial.
The BC Supreme Court Rules set out the requirements of parties to list relevant documents and make these available to opponents in litigation. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with the Court’s discretion addressing where and when documents can be inspected by opposing parties.
In today’s case (More Marine Ltd. v. Alcan Inc.) the Defendant’s list of documents included 125 boxes of materials which were stored in Kitimat, BC. The Plaintiff lived in the lower mainland and argued that the documents need to be made available in Vancouver (the location of the Defendant’s lawfirm) for inspection. The Defendant disagreed and argued that the documents should be inspected in Kitimat. The Court sided with the Defendant and in doing so Mr. Justice Burnyeat provided the following reasons:
Rule 7?1(15) of the Rules of Court provides:
A party who has served a list of documents on any other party must allow the other party to inspect and copy, during normal business hours and at the location specified in the list of documents, the listed documents except those documents that the listing party objects to producing.
However, Rule 7?1(17) of the Rules of Court provides:
The court may order the production of a document for inspection and copying by any party or by the court at a time and place and in the manner it considers appropriate.
While Rule 7?1(15) uses the words “must allow” and “at the location specified”, I am satisfied that the Court retains a discretion under Rule 7?1(17) of the Rules of Court to order production at a time and place “it considers appropriate”. If there was no discretion available to the Court, then Rule 7?1(17) would be superfluous.
In McLachlin and Taylor, the Learned Authors make this statement regarding the location specified under Rule 7?1(17):
Place specified for inspection should be reasonable. Books or business records in use are frequently inspected at the place of business. Other documents are commonly inspected at the office of the solicitor representing the party in questions. (at p. 7?123)….
Given the number of documents involved and the nature of the documents, it is unrealistic to expect that either party will want copies made of all of the documents…
Here, it would be very costly to make copies of all of the documents in the 125 boxes and, accordingly, that is not an alternative that is available. The Plaintiff alleges an exclusive contract to carry the product of the Defendant and a breach of that contract. The documents to be inspected relate to work that was undertaken by third parties in alleged contravention of the contract between these parties. A number of the documents are invoices relating to work allegedly lost and the damages flowing to the Plaintiff as a result of the work that was lost. The many thousands of documents may well be summarized by agreement into several pages once totals are taken from the documents inspected in order to arrive at work which is said to be in contravention of the contract between the parties. Accordingly, I cannot conclude that it will take weeks for a representative of the Plaintiff to examine the documents in the 125 boxes.
Here, the business of the Plaintiff was carried on in Kitimat and these business records have been retained in storage in Kitimat. In the circumstances, I am satisfied that I should exercise the discretion available to me to designate Kitimat as the place where the documents will be available for inspection and copying. After initial inspection has been undertaken, it may well be that the principal of the Plaintiff may be in a position to provide specificity of the further documents to be inspected such that it will not be necessary for all 125 boxes of documents to be inspected.
The documents on the List of Documents of the Defendant relating to the documents stored in the 125 boxes of materials in Kitimat will be made available by the Defendant in Kitimat. Costs will be costs in the cause.
In 2009 the BC Court of Appeal released reasons for judgement addressing the details necessary when listing privileged documents. The first reasons I’m aware of addressing this issue under the New Rules of Court were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that the law remains unchanged.
In today’s case (Anderson Creek Site Developing Ltd. v. Brovender) the Plaintiff sued various defendants claiming damages for alleged unpaid accounts. The Defendants listed many privileged documents in the course of the lawsuit. The Plaintiff brought an application seeking that these be described with greater detail. Mr. Justice Verhoeven granted the application and in doing so provided the following useful summary describing the necessary details when listing a privileged document under Rule 7-1(7):
Rule 7-1(7) requires that:
The nature of any document for which privilege from production is claimed must be described in a manner that, without revealing information that is privileged, will enable other parties to assess the validity of the claim of privilege.
The description in the list of documents is not sufficient to respond to that requirement.
The defendants argue that the description that they have given on their list of documents is not materially different than the plaintiff’s own description. That may be. That application is not before me at the moment.
It is hard to know in a given case how much description is required to answer the requirement in Rule 7-1(7) without revealing privileged information. It depends on the nature of the case and the nature of the document. In this case, I would expect most documents to be transactional documents. There may be other documents as well.
As a minimum, in order to have any assessment of the validity of a claim of privilege, in the circumstances of this case, it seems to me that what is required to be described are four things: first, something about the nature of the communication, that is whether it is a letter or an e-mail or memorandum or something else; second, the date upon which it was created or sent; third and fourth, the author and the recipient. With that information, it may be possible for the plaintiff to assess the claim of privilege. There may be further disclosure that is necessary at that stage; I cannot tell.
So that application will be allowed to that extent. The defendants will produce a more detailed list of privileged documents disclosing that information. The plaintiff will be at liberty to reapply for a better list, in order to challenge the claim of confidentiality.
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:
 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.
 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.
 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.
When a party to a personal injury lawsuit wishes to use documents at trial those documents have to be disclosed to the opposing side as per the BC Supreme Court Rules otherwise the evidence may not be admissible. Two recent cases from the BC Court of Appeal have clearly highlighted this. Today, reasons for judgement were released by the BC Supreme Court considering the scope of documents that need to be disclosed.
In today’s case (Beazley v. Suzuki Motor Coroporation) the Plaintiff called a witness to give expert evidence. The witness testified that he had limited knowledge of something known as the “Critical Sliding Velocity standard” and that he had “never proposed such a standard to the National Highway Traffic Safety Administration“.
On cross-examination the Defence lawyer produced a letter written by the witness addressed to the National Highway Traffic Safety Administration apparently “supporting the use of a Critical Sliding Velocity Standard“.
The Plaintiff’s lawyer objected to this cross examination arguing that the letter was not listed on the Defendant’s list of documents and therefore could not be used. Mr. Justice Goepel disagreed finding that documents that are used solely for impeaching an expert wittiness’ credibility do not necessarily have to be listed. Specifically the Court reasoned as follows:
 A party is obliged to list all documents that fall within the purview of Rule 26(1) including those documents that can properly be described as forming part of the solicitor’s brief: Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203; Dykeman v. Porohowski, 2010 BCCA 36. Neither Stone, Dykeman or the cases cited therein deal with the use of documents being introduced to impeach the general credibility of an expert witness.
 A party who chooses to call an expert vouches for that expert’s credibility. The type and nature of documents that might challenge such credibility are endless. They may include articles, letters, testimony, speeches or statements that the expert has made in the past. There may be other articles which critically challenge the expert’s conclusion. Most documents which go to challenge an expert’s opinion or credibility are not documents which are related to the matter in question in the action. They only become relevant because of the expert’s testimony and do not fall under the purview of Rule 26.
 This ruling does not apply to all documents that the defendants may wish to put to this or other witnesses. If a document is otherwise related to a matter in question, it is not protected from disclosure merely because it will be used in cross examination or forms part of the solicitor’s brief.
 The August 5, 1994 letter, however, only becomes relevant because of Mr. Heitzman’s testimony. It was not a document that need be listed and the defendant is entitled to use the document in cross examination.
 To the extent the plaintiffs object to other documents the defendants might wish to put to Mr. Heitzman, those objections will be dealt with as they arise.
If you would like further information or require assistance, please get in touch.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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