As recently discussed, one of the changes in the new BC Supreme Court Civil Rules is the introduction of Case Planning Conferences (CPC’s). Rule 5-2(7) states that “proceedings at a case planning conference must be recorded, but no part of that recording may be made available to or used by any person without court order“. The first reasons for judgement that I’m aware of addressing the issue of a court’s discretion to order a transcript of proceedings following a CPC were released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Shen v. Klassen) the plaintiff was involved in a motor vehicle collision and sued for damages. In the course of the lawsuit a CPC was held. The Defendant wrote the Court requesting a copy of a transcript following the CPC. The plaintiff took no position with this request. Despite this the Master refused to make a transcript available stating that “I see no basis upon which to accede to the request“.
The Defendant appealed. The Plaintiff again took no position. Madam Justice Beames allowed the appeal and permitted the Defendant to obtain a copy of the CPC transcript stating that “there is no compelling reason, in my view, for the court to refuse to order a transcript of a CPC where one party seeks the transcript and the other party does not object“.
The Court was invited by the Defendant to set out guidelines to be applied in future cases addressing the circumstances when CPC transcripts should be released. Madam Justice Beames refused to do so noting that it would be inappropriate to do so when the Court only heard one party’s submissions on this issue.
I will continue to follow the Judicial development of this rule and write about relevant cases as they come to my attention. If anyone is familiar with other cases addressing the Court’s discretion to order the release of CPC transcripts I invite you to bring them to my attention.
(Update November 2, 2011 – Note the below case was modified by the BC Court of Appeal with a finding that the motorist should be 100% at fault due to the absence of any evidence of contributory negligence)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, discussing the issue of fault when a passenger riding in the box of a truck is ejected and injured.
In today’s case (Vedan v. Stevens) the Defendant driver allowed 4 children sit in the box of his pick-up truck. The 12 year old Plaintiff was one of these children. In the course of the trip the defendant “first became aware of a problem when he heard pounding on the cab of his truck…he stopped the truck and determined that one of the children, the plaintiff, was no longer in the truck box. He looked back and could see the plaintiff lying in the middle of the road“.
Madam Justice Beames determined that the Plaintiff rose from a seated position in the course of the trip and then was ejected. The court held that both the Plaintiff and the Defendant were at fault with the Defendant shouldering most of the blame. Madam Justice Beames provided the following reasons:  There is no question that the defendant was responsible for allowing the plaintiff and the other children to ride in the box of his truck. He did not have to allow the plaintiff to get into the box of the truck, and he had enough seats and seat belts, I find, inside the truck to accommodate all of his passengers, including the plaintiff…
 I find the defendant owed a duty of care to the plaintiff and that he breached that duty and failed to exercise a standard of care of a reasonable person in the same circumstances. That negligence was clearly causally connected to what happened to the plaintiff. The plaintiff would not have been injured had the defendant not allowed him to ride unrestrained in the box of his truck. It was foreseeable, in my view, that what occurred would or could occur.
 I turn now to the issue of contributory negligence on the part of the plaintiff…
 In the circumstances of this case, I would not find that the plaintiff was contributorily negligent simply by riding in the back, or the box, of the truck. He was allowed to be there by an elder from the Sun Dance ceremony which featured community, trust and respect for elders. However, I do find that the plaintiff was, by getting up from a seated position on the floor of the box in a moving truck, negligent in fact.
 Consequently, the defendant has proved contributory negligence…
 In all of the circumstances of this case, I apportion fault between them as follows: the plaintiff, 25 percent; the defendant, 75 percent.
As previously discussed, when Plaintiffs lose a lawsuit in the BC Supreme Court the Defendants are typically each entitled to recover their ‘costs‘. For this reason Plaintiffs need to take care in selecting the Defendants to their lawsuit. The same principle holds true for Defendants who don’t accept blame for their actions and unsuccessfully try to pass the buck by dragging a ‘Third Party’ into a lawsuit. Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, demonstrating this general principle.
In this week’s case (Vedan v. Stevens) the Plaintiff sued the Defendant for personal injuries. The Defendant denied fault and blamed the Plaintiff. The Defendant also filed a “Third Party” claim against two individuals arguing they may be at fault and brought them into the lawsuit. Ultimately Madam Justice Beames found that both the Plaintiff and the Defendant were at fault for the Plaintiff’s injuries but that the Third Parties were faultless.
The Third Party brought a motion seeking an order requiring the Defendants to pay their costs. The Defendant argued that these should be the Plaintiff’s responsibility. Madam Justice Beames disagreed and ordered that the Defendant pay the Third Party’s costs. In reaching this typical result the Court provided the following reasons:
 With respect to who ought to pay the third parties’ costs, the general rule is that a defendant who has unsuccessfully brought third party proceedings should be responsible for the third parties’ costs: Wilson v. INA Insurance Co. of Canada,  B.C.J. No. 2174 (B.C.C.A.) at para. 37; Milina v. Bartsch,  B.C.J. No. 2789 (S.C.) at para. 4.
 As McLachlin J. (as she then was) said in Milina:
 There may be situations where, on the peculiar facts of the case, fairness requires that an unsuccessful plaintiff bear a successful third party’s costs. Courts have held that such an order may be appropriate where one or more of the following situations was present:
1. Where the main issue litigated was between the plaintiff and the third party…
2. Where the third party was brought or kept in the matter by reason of the act or neglect of the plaintiff…
3. Where the case involves a string of contracts in substantially the same terms for the sale of goods…
4. Where the third party proceedings follow naturally and inevitably upon the institution of plaintiff’s action, in the sense that the defendant had no real alternative but to join the third party…
 The defendant argues that this situation is very similar to that of Norman (Guardian ad litem of) v. McMillan, 2004 BCSC 384 in which the court found that the defendant fell within the exceptions in paragraphs 2 and 4 of Milina. In my view, the decision in Norman is distinguishable. There, the defendant was found completely blameless for the accident, which had initially been commenced when the plaintiff’s mother was his guardian ad litem. It had been her decision to commence the unsuccessful action against the defendant in the first instance. Certain steps that were taken in the action led the trial judge to conclude that defence counsel had a proper basis for alleging negligence on the part of the third party and the trial judge accepted that the third party, or her counsel, had employed tactics amounting to an attempt to make an end run around the defendant.
 I am not satisfied that there is anything in this case which takes it out of the general rule. Consequently, the defendant will bear the third parties’ costs as assessed.
As I’ve previously written, the BC Evidence Act permits, in certain circumstances, witnesses to give evidence via video-conference instead of appearing live in Court. This can result in great savings of time and money to parties involved in a lawsuit. Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, demonstrating that orders allowing video-conference evidence at trial may become more common place given the New BC Supreme Court Rules focus on “proportionality”.
In today’s case (Slaughter v. Sluys) the Plaintiff was injured in a 2004 motor vehicle collision in Vernon, BC. The case was set for trial for April, 2011. Many of the Plaintiff’s witnesses were from Ontario and the Plaintiff wished to have them testify via video-conference. If the Plaintiff was granted this order he estimated the savings at $50,000. The Defendant objected arguing that the video-conference rule “is intended to apply in relatively rare circumstances, and to individual or a limited number of witnesses. He says that there is no authority for what the plaintiff proposes, namely to call 11 of his 28 witnesses via videoconference, over an estimated 22 hours…It is the defendant’s position that the cost of having the witnesses attend in Vernon for the trial pales in comparison to the multi?million dollar claim being advanced by the plaintiff. It is his position that it would be fundamentally unfair to limit the defendant’s counsel’s ability to have a full and complete cross-examination of the witnesses, which he says can only occur if the witnesses are physically present in the courtroom.”
Madam Justice Beames rejected these arguments and largely granted the Plaintiff’s motion. In doing so the BC Supreme Court gave the following reasons explaining the vital role of the ‘proportionality‘ principle in having cost effective trials:
 There is no question that the Rules of this province, enacted in 2010, have a new or at least renewed, emphasis on the just, speedy and inexpensive determination of a proceeding on its merits, which involves a consideration of proportionality. There is also no question that various forms of technology have been employed on a more frequent basis recently, in all court proceedings, including trials. Advances have been made in the quality of communication via videoconferencing, which has all but eliminated the problems often associated with videoconferencing in the early days of its use, which involved time delays in the transmission and which in turn frequently resulted in counsel and witnesses talking over each other and which made for a less than satisfactory method of conducting both direct or cross examination. I have, in the recent past, found videoconferencing to be an acceptable and satisfactory method of receiving evidence from a witness, which has not inhibited assessment of credibility or the finding of facts. Although at first blush 22 hours worth of evidence via videoconference seems to be a significant amount of time, it must be borne in mind that this trial is scheduled to last for six weeks, and the proposed videoconferencing would consume but four days of the trial.
 I am not convinced, as submitted, that it would be “fundamentally unfair to the defendant to deprive him of the opportunity to have witnesses properly cross examined” in person in the courtroom. Proper and full cross examination can take place even when witnesses are appearing via videoconferencing. In my view, this is particularly so where the witnesses are experts and where credibility per se is not in issue and it is also the case where the evidence a witness may give is not overly contentious. On the other hand, the plaintiff cannot, alone, determine which witnesses are “important” and therefore should attend in person, and which witnesses are “not so important” and therefore should be permitted to testify via videoconferencing.
 I am also mindful of the submission that cross examination of the experts will be difficult if conducted via videoconferencing, as a result of the number of documents each witness may be asked to review. However, videoconferencing can be accompanied by equipment at each end of the transmission that allows both the expert and the examiner to view the same document. Further, the experts’ files are required, under the new Rules, to be produced for review by opposing parties, on request, at least 14 days before trial. File contents may be organized and numbered in such a way as to minimize any concerns with respect to the use of documents during direct or cross-examination via videoconferencing. I am satisfied that any need to refer experts to documents can be satisfactorily accommodated and does not mean that experts should not be permitted to testify via videoconferencing.
 Bearing all of the evidence and submissions of counsel in mind, and attempting to balance the interests of the parties, I have concluded that the following witnesses should be permitted to testify by videoconference: Mike Willems, Frank Durant, Dr. Marshall, Dr. Stimac, Dr. Berry, Dr. Scher, and Dr. Travlos. With respect to the remaining witnesses, each, as I understand the submissions, has something to say about the plaintiff’s most significant claim, his loss of opportunity to earn income, in that each either works with or supervises the plaintiff in his current employment. Given their relationships to the plaintiff, the possibility that their evidence will be very contentious, and that none of them have provided the court with any indication that they will be personally inconvenienced or suffer hardship as a result of testifying in person in Vernon, they will be required to testify in person if the plaintiff does indeed call their evidence at trial.
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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