BC Court of Appeal – Alleged Witness Financial Gain is Fair Game in Injury Claim Cross Examination
The BC Court of Appeal addressed the fair scope of witness cross examination with respect to alleged bias in reasons for judgement released last week.
In last week’s case (Mazur v Lucas) the Plaintiff was employed as a legal secretary for a Vancouver law firm. While on disability leave she was involved in a collision. She sued for damages alleging the collision related injuries prevented her from returning to work.
The Plaintiff was represented by a lawyer from the firm that she worked at. In the course of the trial the firm’s Human Resources Manager testifed with respect to the Plaintiff’s “excellent work performance“. The Defendant’s lawyer cross examined this witness, suggesting bias in that the firm may financially gain if the jury awarded significant damages as the claim was likely being prosecuted by the firm on a contingency basis. Although this evidence did not lead to any harmful admissions the Plaintiff argued the cross examination was prejudicial. The BC Court of Appeal found that this line of questioning was fair game and in reaching this conclusion provided the following reasons:
 The respondents’ cross-examination opened by noting that Ms. Mazur was being represented by a lawyer from Clark Wilson. The respondents’ counsel put the suggestion to Ms. Morrison that personal injury cases are generally dealt with by contingency fee agreements and that Clark Wilson possibly stood to gain from any award Ms. Mazur received. Ms. Morrison stated she had no knowledge of the fee arrangement. Ms. Mazur’s counsel did not object to this line of questioning and even re-examined the witness in this area.
 After the witness and the jury were excused, Ms. Mazur’s counsel asserted the questions were improper, suggesting counsel was insinuating that Ms. Morrison’s testimony was influenced by the likelihood that her firm had a financial interest in the outcome of the trial. He asked the judge to tell the jury to disregard this evidence in her charge. Counsel did not make a mistrial application.
 In her final charge to the jury, the trial judge referenced the cross-examination of Ms. Morrison and instructed the jury as follows:
…The defendants say there is reason for Ms. Morrison to be biased in her evidence. I should note, however, that while it is entirely up to you to decide if you thought Ms. Morrison had any reason to be biased in her evidence, that not only is there no evidence to support a suggestion that the law firm of Clark Wilson might benefit from this lawsuit, such a consideration is not relevant to your deliberations. I do not believe [counsel for the respondent] was suggesting through her questions that you should draw such an inference. She was merely reciting a number of factors that you might properly consider as to bias. In any event, such a consideration, that is, whether Clark Wilson might benefit from this lawsuit, is irrelevant to your considerations.
 There was no objection to this instruction. However, on appeal, Ms. Mazur submits this instruction was ambiguous, confusing and insufficient. She contends that the comments resulted in placing an irrelevant and highly prejudicial notion in the minds of the jury that any award would benefit Ms. Mazur’s lawyer. Ms. Mazur believes the jury was influenced by the suggestion that the law firm stood to gain financially.
 I agree with the respondents that the questions put to Ms. Morrison on cross-examination appropriately probed any potential bias arising out of her dual role as a witness from the law firm employing Ms. Mazur and as a management employee of the law firm representing Ms. Mazur. The cross-examination of a witness with respect to potential bias is a legitimate subject of questioning.
 The judge’s instructions were straightforward and correct in law. She properly left the jury with the task of evaluating Ms. Morrison’s evidence and, in particular, of assessing whether her interest in portraying her firm in a favourable light compromised her objectivity. The judge also explained to the jury that there was no evidence to suggest that Clark Wilson had a pecuniary interest in the outcome of the case and, in any event, no basis on which it could find that any such interest might have influenced Ms. Morrison’s testimony.
 I am of the view that the impugned instructions were comprehensible and unobjectionable. I am strengthened in this view by the fact that the appellant’s trial counsel raised no objection to them. Counsel was in a good position to assess the adequacy of the instructions in the context of the evidence and of the charge as a whole, and his failure to object is, in my opinion, telling. I would not accede to this ground of appeal.