Tag: Mr. Justice Ehrcke

Nurse Found Liable for "Negligent Walking"

There is no reason why the principles of negligence can’t apply to a situation where one pedestrian negligently walks into another causing injury.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.
In today’s case (Faircrest v. Buchanan) the “unintentionally bumped into (the plaintiff) while leaving her office to attend to a patient”.  The Plaintiff fell down and suffered a fractured hip.
The Defendant argued that no liability should flow stating that “a person of ordinary fortitude would not have fallen as a result of the Collision“.  The Court disagreed and found liability could flow from negligent walking.  In doing so Mr. Justice Erhcke provided the following reasons:

[57]         The parties are in agreement that there are four elements to be proved by the plaintiff in an action for negligence, as set out in para. 3 of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27:

[3]        A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach. I shall examine each of these elements of negligence in turn. As I will explain, Mr. Mustapha’s claim fails because he has failed to establish that his damage was caused in law by the defendant’s negligence. In other words, his damage are too remote to allow recovery.

[58]         The first and the third elements are not in issue, since Fraser Health acknowledges that Nurse Buchanan owed the plaintiff a duty of care and that the plaintiff was injured in the Collision. Fraser Health also acknowledges that it is vicariously liable if Nurse Buchanan is found to have been negligent.

[59]         As to the fourth element, Fraser Health contends that even if the plaintiff’s injuries were in fact caused by the Collision, they were too remote to warrant damages, and therefore, legal causation has not been established. Fraser Health submits that a person of ordinary fortitude would not have fallen as a result of the Collision, or if she did, she would not have sustained injury.

[60]         I do not agree. There is no evidence that Ms. Faircrest’s arthritis, age, or stature had anything to do with her sustaining injuries in the Collision. Although she may have walked more slowly than others, that was not a relevant factor in the outcome. It was reasonably foreseeable that if Nurse Buchanan, who weighed 185 lbs., while not watching where she was walking, collided with a female volunteer, that volunteer might fall and suffer physical injuries. The injuries are not too remote to warrant damages, if the standard of care was breached.

[61]         We come then to the third element, breach of the standard of care. The standard of care in the case of collisions between pedestrians was described in this way by Dhillon J. in Mills v. Moberg (1996), 27 B.C.L.R. (3d) 277 (S.C.) at para. 6:

The duty of pedestrians to one another is to act as an ordinary person would in the circumstances, using the degree of care and vigilance which the circumstances and the interests of others using the walkway demand.

[62]         In that case, Dhillon J. found a delivery driver liable in negligence for having knocked over another pedestrian as he walked around the corner of his truck in a mall parking lot, causing the 76-year-old plaintiff to fall and break her hip. She wrote at para. 6:

In this case, the defendant, Moberg, failed to consider the possibility of other pedestrians in the parking lot despite the configuration of the lot which necessitated pedestrians to cross the lot to reach the shops. Given the proximity of the mall to long term care and rehabilitation facilities and given Moberg’s regular presence at the mall, Moberg should have been alert to the presence of pedestrians including disabled persons in the vicinity. He did not look to his right as he quickly rounded the rear of his delivery van to reach the driver’s door. His failure to look for other pedestrians was the cause of the collision.

[63]         In the present case, it is, of course, relevant that Connolly Lodge is a residential mental health facility and that Nurse Buchanan had a duty to react quickly to the disturbance caused by one of the patients. Nevertheless, her quick reaction was no reason to be heedless of other persons standing or walking in the Lodge who might be in her path as she proceeded to attend to the patient. Her failure to notice the presence of the plaintiff in her path caused the Collision.

[64]         I therefore find that Nurse Buchanan was negligent, and that Fraser Health is vicariously liable for her negligence.

Saskatchewan No Fault Scheme Catches All Out of Province Motorists

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that Saskatchewan’s restrictive ‘no-fault’ auto insurance scheme strips the right of out of Province visitors from seeking tort compensation when injured through the wrongful driving of another in Saskatchewan.
In this week’s case (Ngo v. Luong) the parties were BC residents driving in Saskatchewan.  The Defendant lost control of the vehicle flipping over and causing injury to the passenger.  The Plaintiff started a lawsuit in BC Supreme Court hoping to get around Saskatchewan’s no-fault system.  Mr. Justice Ehrcke found that Saskatchewan’s laws applied and stripped the Plaintiff’s right to seek damages in tort.  In dismissing the claim the Court provided the following reasons:
[1]             Are British Columbia residents who are involved in a motor vehicle accident in Saskatchewan able to sue for damages in tort in British Columbia, or are they bound by Saskatchewan’s no-fault insurance scheme?…
[27]         The substantive rights of a person who is injured in a motor vehicle accident in Saskatchewan after 2002 and who did not make a tort election prior to the accident are those rights set out in Part VIII. That is true for anyone who did not make a prior tort election, regardless of whether that person is a Saskatchewan resident or not. The only difference is that the out-of-province claimant never had the possibility of making such an election. But once the accident has occurred and the claimant, whether from Saskatchewan or not, has not previously made a tort election, the claimant’s rights are those defined by Part VIII of the AAIA. Thus, the statute does not, as submitted by the plaintiff, set out a procedural election by which a claimant who has been injured in an accident can then select the means by which he or she enforces his or her rights. The rights are already defined by the statute at the moment the accident has occurred. Since the AAIA defines what the claimant’s rights are and not the means of their enforcement, the AAIA is substantive, not procedural law.
[28]         This categorization of the AAIA has the consequence that a British Columbia plaintiff who is injured in a Saskatchewan motor vehicle accident is in no better position bringing his or her suit in British Columbia than in Saskatchewan. The fact that this categorization eliminates a motive for forum shopping is an additional indicator that the categorization of the law as substantive is the correct categorization…
[30]         As I have found the AAIA to be substantive, rather than procedural law, and as the AAIA is therefore applicable to the plaintiff’s claim regardless of the fact that it is brought in a British Columbia court, the plaintiff’s request for a declaration that this action is not barred by the provisions of the AAIA is dismissed.
 

At-Scene Admission Tips the Scales at Liability Trial

As previously discussed, admissions in the aftermath of a collision can be important evidence when a liability case proceeds to trial.  Reasons for judgement were released this week where such evidence was the crucial tipping point.
In this week’s case (Koshman v. Brodis) the parties were involved in an intersection collision. Both claimed to have a green light.  Both had independent witnesses confirming their versions of events.  Ultimately the Court held that while it was a close call the Plaintiff likely had the green light and held the Defendant fully at fault.  In reaching this conclusion the Mr. Justice Ehrcke provided great weight to an at-scene admission made by the Defendant.  The following reasons were provided:
[26]         A determination should not be made simply by counting the number of witnesses on each side, nor is the testimony of an off-duty police officer necessarily of more weight than that of a civilian witness.
[27]         Clearly, different people at the scene saw things differently, and have different memories of how this accident occurred. That is not particularly unusual in a trial such as this.
[28]         What is somewhat unusual in this case is that both the plaintiff and a neutral civilian witness, Mr. Fontaine, testified that after the collision the defendant acknowledged responsibility. The plaintiff testified that the defendant said to her at the scene that the accident was her fault. The defendant testified that if she said this, she did not mean to imply that she admitted liability. Mr. Fontaine testified that the defendant said to him, “Oh my God, I’m so sorry, I didn’t see the red light.” The defendant denies having said those words.
[29]         I do not accept the defendant’s explanation for what she said to the plaintiff at the accident scene, and I do not believe her denial of what she said to Mr. Fontaine. I am satisfied on a balance of probabilities that she did say these things, and she did so because she was aware that she had entered the intersection against a red light.
One matter of interest that did not appear to be canvassed was whether this admission should have been admitted give section 2 of BC’s Apology Act which holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”

Travelling Expenses "An Integral Part" of ICBC Part 7 Benefits


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing benefits which ought to be covered under a plaintiff’s first party insurance (Part7 benefits) with ICBC.
In today’s case (Wepryk v. Juraschka) the Plaintiff was injured in a 2008 collision and sued for damages.  At trial the Plaintiff’s damages were assessed at just over $83,000.  The Defendant then applied to have some of the assessed damages deducted pursuant to section 83 of the Insurance (Vehicle) Act.  In finding that mileage and parking expenses ought to be covered by ICBC’s no-fault benefits scheme (and therefore deductible from the tort damages) the Court provided the following findings:
[10]         I also agree that $22.50 for parking should be deducted as a component of travelling expenses for treatment. Travelling expenses are an integral part of necessary treatment and as such are a benefit subject to deduction:  Petersen v. Bannon, (1991) 1 C.C.L.I. (2d) 232 (B.C.S.C.).
[11]         The plaintiff also claimed car expenses for driving to and from medical appointments at a rate of .50¢ per kilometre, and I awarded the entire amount of $1,368.90 claimed by the plaintiff on the basis of her calculations. The defendants originally submitted that the entire amount of $1,368.90 should be deducted, but now say the deduction should be $684.45. According to ICBC’s Claims Procedure Manual for Accident Benefits, ICBC will only reimburse the use of one’s own vehicle at a rate of .25¢ per kilometre. Therefore, one half of the $1,368.90 awarded at trial, or $684.45, should be deducted for driving expenses.
 

Welcome CFAX Listeners – Dog Bite Injury Law in BC


Earlier today I had the pleasure of being interviewed by CFAX Radio with respect to lawsuits for compensation as a result of Dog Bite injuries in British Columbia.
For those of you looking for more on this area of law you can click here to read a 2004 decision which provides the following useful overview of the legal principles of scienter and negligence which were discussed in today’s interview:

[] The common law doctrine of scienter differs from negligence in that if the conditions for scienter are found, the liability is absolute and does not depend upon proof of negligence.  The requirements for establishing scienter were described by the British Columbia Court of Appeal in Janota-Bzowska v. Lewis[1997] B.C.J. No. 2053.  In that case the Court observed at para. 9 that the owner of a dog can be found liable for an attack in two ways:

First, the owner may be held liable under the doctrine of scienter and second, the owner may be held liable for negligence.  It is important to keep the two separate as they often become intertwined.  They are, however, not the same.

The Court went on at para. 20 to describe the doctrine of scienter in this way:

The law with respect to the doctrine of scienter is relatively clear.  The owner of a dog which bites another will not be liable simply for being the owner.  Liability will only attach under the doctrine if the three conditions set forth in the Neville decision have been satisfied.  In other words, the plaintiff (not the defendant) must establish:

i)   that the defendant was the owner of the dog;

ii)  that the dog had manifested a propensity to cause the type of harm occasioned; and

iii) that the owner knew of that propensity.

Some provinces now have legislation which modifies the common law of scienter but, since the repeal of the Animals Act in 1981, British Columbia does not and the common law applies untrammelled by statutory enactment.

[] At para. 23 of the judgment, the Court of Appeal described the requirements for negligence in the context of a dog attack in this way:

To succeed in an action based on negligence against Holtzman, the plaintiff must prove, on a balance of probabilities that:

(a)  Holtzman knew, or ought to have known, that Boomer was likely to create a risk of injury to third persons, including the plaintiff; and

(b)  Holtzman failed to take reasonable care to prevent such injury.  …

[] It can be seen that there are two important differences between liability based on scienter and liability based on negligence.  If the requirements of scienter are established, liability is absolute, and the plaintiff is not required to show breach of a standard of care.  On the other hand, to establish scienter, the plaintiff must show both that the dog manifested a propensity to cause the type of harm which occurred and also that the owner knew of that propensity.  It thus appears that for scienter, the mental element is based on a subjective test:  the plaintiff must establish that the defendant actually knew of the dog’s propensity to cause the relevant type of harm.  This is in contrast to liability based on negligence, where an objective test applies.  That is, for negligence it is sufficient if the defendant knew or ought to have known that the dog was likely to create a risk of injury to third persons, and failed to take reasonable care to prevent the injuries.

$100,000 Non-Pecuniary Assessment for C6-C7 Disc Herniation Requiring Surgery

Following a fairly unique collision involving a downed utility pole, reasons for judgement were published last week by the BC Supreme Court, Kamloops Registry, assessing damages for a C5-C6 disc injury requiring surgical intervention.

In last week’s case (Baxter v. Morrison) the Defendant tractor trailer operator struck overhead power lines with his vehicle causing the power pole attached to the wires to break into pieces falling on the plaintiff’s vehicle causing a severe neck injury.
Although fault was disputed Mr. Justice Ehrcke found the defendant fully liable for the incident.  The plaintiff’s neck injury required surgery which largely, but not entirely, improved his symptoms leaving the plaintiff with some permanent symptoms.  In assessing non-pecuniary damages at $100,000 the Court provided the following reasons:

[55] Here, the plaintiff, who was 47 at the time of the accident and who enjoyed an active lifestyle both at home and at work, suffered injuries to his neck, right shoulder, and arm. Dr. Brownlee found that his right arm pain was caused by a disc herniation resulting from the accident. He performed an operation on his neck to remove the disc, and this relieved about 70% of the pain. Dr. Brownlee’s opinion is that following the operation, Mr. Baxter has a “mild degree of permanent disability as a result of his ongoing neck pain.” This discomfort continues to affect Mr. Baxter both at home and at work.

[56] While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Taking account of all of the factors mentioned in Stapley v. Hejslet, I would assess general damages in this case at $100,000.

$50,000 Non-Pecuniary Assessment for Frozen Shoulder and Chronic Soft Tissue Injuries

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained as a result of a motor vehicle collision.
In last week’s case (Wepryk v. Juraschka) the Plaintiff was involved in a 2008 collision.  She was a passenger and the driver of her vehicle lost control resulting in a roll over collision.  Liability was admitted.  The 43 year old Plaintiff suffered soft tissue injuries and while she was able to continue working as a hairdresser these injuries limited her abilities to do so.  In assessing non-pecuniary damages at $50,000 Mr. Justice Ehrcke provided the following reasons:

[9] All of the doctors are agreed that Ms. Wepryk suffered soft tissue injuries to her neck, left shoulder, and upper back as a result of the accident, and that she continues to experience pain, discomfort and occasional headaches from these injuries at the time of trial, three and one-half years after the accident.

[10] In addition, Dr. Chan was of the opinion that Ms. Wepryk suffered adhesive capsulitis or frozen shoulder as a result of the accident. Dr. Loomer did not agree with that conclusion. Dr. Chu had no opinion on the causation of the adhesive capsulitis. Dr. Smith agreed with the opinion of Dr. Chan. On a balance of probabilities, I accept the opinion of Dr. Chan, although not a great deal turns on this, since, as Dr. Chu expressed it, the left adhesive capsulitis is “the least of her problems”.

[11] There was also a disagreement between Dr. Smith and Dr. Tessler regarding the causation of left C-8 sensory neuropathy. Again, I find that nothing of significance turns on this, as these symptoms were minor and transient.

[12] The important fact is that the defendants accept that Ms. Wepryk suffered soft tissue injuries to her neck, her left shoulder, and between her shoulder blades, and that she continues to experience pain to this day. As Dr. Smith put it in his report dated February 26, 2012:

More than three years have passed since Ms. Wepryk’s motor vehicle accident of December 5, 2008. In terms of prognosis, Ms. Wepryk unfortunately has fallen into the 10% of patients still with symptoms more than two years after their motor vehicle accident. Therefore, Ms. Wepryk’s prognosis to return to pre motor vehicle accident levels of functioning is poor, and Ms. Wepryk must now learn to cope with what I believe is a permanent functional impairment.

[13] I accept that conclusion, notwithstanding that Dr. Loomer expressed a “hope” of improvement. In cross-examination, even he agreed that there is no definite evidence that she will get better.

[14] It is likely, therefore, that Ms. Wepryk will continue to suffer from the pain to her neck, left shoulder and upper back, along with occasional headaches. Her symptoms are aggravated when she has to perform activities that require her to raise her arms, or to use her left shoulder. This has an impact on her work as a hairdresser, which requires such activities. It also has an impact on her recreational activities and activities of daily life….

[35] While reference to previous cases provides useful guidance, every case must be assessed on its own particular facts. Here, the plaintiff, who was 43-years-old at the time of the accident and who enjoyed an active lifestyle, suffered soft-tissue injuries to her neck, left shoulder, and upper back. Now, more than three and one-half years after the accident, her pain and discomfort have not fully resolved, and she is likely to have some residual effects for the indefinite future. She continues to have headaches three or four times a month, and she cannot engage in vigorous physical activities, particularly those that require her to raise her left arm above her shoulder-level, without experiencing pain. She therefore finds it difficult to be as physically active as she was before the accident. She says that she has gained some weight as a result, although the medical evidence suggests that any weight gain has been modest.

[36] In the circumstances of this case, on the facts as I have found them, and considering the factors set out in Stapley v. Hejslet, I find the proper assessment of non-pecuniary damages to be $50,000.

More Than Lawyer's Say Needed For MRI's to be Recoverable Disbursements


Further to my previous post on this topic, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing when an MRI is a reasonable disbursement in a personal injury lawsuit.
In today’s case (Farrokhmanesh v. Sahib) the Plaintiff was injured in two BC collisions.  He sued for damages and settled his claims prior to trial.  However, the parties could not agree on whether some of the Plaintiff’s disbursements were reasonable.  The parties applied to the Court to resolve the issue and Registrar Sainty held that the Plaintiff’s privately retained MRI was not a recoverable disbursement.  The Plaintiff appealed this ruling.  Mr. Justice Ehrcke dismissed the appeal and in doing so made the following comments about MRI’s in personal injury lawsuits:

[33]         The applicant submits that the Registrar erred in principle by saying that there must be a medical reason for ordering the MRI. In my view, the applicant’s submission seeks to parse the Registrar’s decision too finely. In reviewing the Decision of the Registrar with the appropriate level of deference, it would be wrong to focus on a single word or a phrase taken out of the context in which it occurs.

[34]         When read in context, the Registrar’s reason for disallowing the cost of the MRI is that she found it was not necessarily or properly incurred. In coming to that conclusion, she took into account that no medical professional had advised counsel of the probable utility of an MRI in the particular circumstances of this case. Mr. Fahey had deposed in para. 11 of his affidavit that he was unaware of the plaintiff exhibiting any objective signs of injury when he ordered the MRI scans.

[35]         I am unable to find that the Registrar acted on a wrong principle in disallowing the cost of the MRIs in this case, and I would not interfere with her Decision.

To be on the safe side it is a good idea to have a treating medical practitioner requesting an MRI or other diagnostic test to maximize the chance that these expenses will be recoverable disbursements.

Who's the Expert? The Rule Against "Corporate Reports"


When a party introduces an expert report at trial in the BC Supreme Court one of the requirements is that the report sets out “the name of the person primarily responsible for the content of the statement“.  If a party fails to do so they risk having the report excluded from evidence.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Jones v. Ma) the Plaintiff was involved in a motor vehicle accident.  She sued for damages.  Fault was at issue and in support of their case the Defendants hired an engineering firm who produced an accident reconstruction report.  The report was signed by a Forensic Engineer.
The Plaintiff objected to the admission of the report arguing that it was not the report of the expert who signed it, rather it was “a corporate report which embodies the observations and opinions of several individuals, without clearly distinguishing who made the various observations on which the opinions are based and who engaged in the process of forming the opinions that are expressed in the report.”
The Engineer was cross examined and it become evident that “the majority of the work on the report was not done by (the engineer that signed it), but rather by other persons in the firm he works for”.  The Court went on to exclude the report from evidence.  Mr. Justice Ehrcke provided the following useful summary and application of the law:

[11]         This is not simply a matter of form. The purpose of the rule is to ensure fairness to both parties by providing the party on whom the report is served with adequate notice to enable them to effectively cross-examine the expert and to properly instruct their own expert if they choose to retain one.

[12]         The relevant case law was reviewed by Burnyeat J. in Dhaliwal v. Bassi, 2007 BCSC 548, 73 B.C.L.R. (4th) 170. In that case, the Court was presented with an expert report of a Dr. Passey who, in forming his opinions, relied on psychological questionnaires administered by a Dr. Ross. Mr. Justice Burnyeat wrote…:

[4]        The purposes of Rule 40A are clear:  (a) neither side should be taken by surprise by expert evidence (Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (B.C.C.A.) at para. 33) and neither side should be ambushed or surprised at trial; (b) to ensure fairness to the parties and to promote the orderly progression of the trial (C.A. v. Critchley(1996), 4 C.P.C. (4th) 269 (B.C.S.C.) at para. 15). The burden on Mr. Bassi to show that I should exercise my discretion to allow the report to be introduced has been described as a:  “… relatively heavy burden ….”:  McKay v. Passmore, [2005] B.C.J. (Q.L.) No. 1232 (B.C.S.C.), at para. 26. The question which arises is whether there is “… substantial and irremediable prejudice ….” so as to justify the exclusion of the report on the basis that the statement does not comply with Rule 40A(5)(c) of the Rules of Court:  C.A. v. Critchley,supra, at para. 12…

In my view, a document is not a written statement setting out the opinion of an expert unless it appears clearly from the face of that document that the opinions in it are those of the individual expert who prepared and signed the statement. Our rules make no provision for the entry in evidence of joint or corporate opinions. The opinion must be that of an individual expert and it must fall, of course, within the scope of her own expertise. The opinion cannot simply be a reporting of the opinions of others. The statement, to be admissible, must show clearly that this is the case.

I find some support for this view in the decision of my brother Judge Macdonald in Emil Anderson Construction Co. Ltd. … As that case points out, there is a real possibility of procedural prejudice to cross-examining counsel if he or she cannot tell from the report which of the opinions are truly those held by the witness giving evidence and which are simply opinions of other team members reported to her and asserted by her in the written report. (at paras. 11-12)

[10]      Unless the authors of all parts of an opinion are known, unless the qualifications of each person contributing to the opinion are known, and unless the facts upon which each of the persons contributing to an opinion are set out, the cross-examination of an expert witness regarding the opinion that had been provided would be impossible.

[13]         In my view, the report tendered by the defendant in the present case does not comply with the requirements of Rule 40A(5), and it would cause irreparable prejudice to the plaintiff if the report were admitted.

[14]         The report is excluded from evidence.

I should point out that this case was decided relying on the current BC Supreme Court Rule 40A(5)(c).  As readers of this blog know the BC Supreme Court Rules are being overhauled on July 1, 2010 and some of the biggest changes relate to the rule concerning expert opinion evidence.

Rule 40A(5)(c) reads that “The statement shall set out or be accompanied by a supplementary statement setting out…the name of the person primarily responsible for the content of the statement.”

The new rule dealing with the content of expert reports is Rule 11-6 which states

An expert’s report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:

(a) the expert’s name, address and area of expertise;…”
While the language has changed somewhat the underlying purpose of the requirement appears the same and that is to not prejudice the opposing party’s ability to cross examine the opinion.  It seems this case will retain its value as a precedent under the New BC Supreme Court Rules but time will tell.

Personal Injury Claims and The "Admission" Exception to the Hearsay Rule


Hearsay is an out of Court statement introduced at trial for the truth of its contents.  Generally hearsay evidence is not admissible in Court but there are several exceptions to this.
One well established exception to the hearsay rule is the rule of “admissions against interest“.  If a party to a lawsuit says something that hurts their interests that statement can generally be admitted in Court for its truth.  Reasons for judgement were released today discussing this important principle in a personal injury lawsuit.
In today’s case (Jones v. Ma) the Plaintiff was injured in a BC motor vehicle collision.   After the crash the Plaintiff approached the Defendant and the Defendant admitted fault.   The Plaintiff then asked the Defendant’s permission to record their discussion using her cell-phone.  The Defendant consented and repeated this admission of fault.
In the formal lawsuit the Defendant denied being at fault for the crash and instead sought to blame the Plaintiff.  At trial the Plaintiff introduced the the cell phone recording into evidence.  The Defendant objected arguing that this was inadmissible hearsay.  Mr. Justice Ehrcke disagreed and admitted the evidence finding that if fit the “admissions” exception to the hearsay rule.  In reaching this decision the Court provided the following useful summary and application of the law:
…the admissibility of an out of court admission by a party to a lawsuit….was specifically addressed by the Ontario Court of Appeal in R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.). In that case Doherty J.A., delivering the judgment of the Court, said at pages 215 to 216:

Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis. As Sopinka J. explained in R. v. Evans [1993] 3 S.C.R. 653, at page 664:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all.The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” (Morgan, “Basic Problems of Evidence” (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.  [Emphasis in original].

[10]         I agree with that statement of the law. It was adopted by our Court of Appeal in R. v. Terrico, 2005 BCCA 361. Admissions made by one party to litigation are generally admissible if tendered by the opposing party, without resort to any necessity/reliability analysis.

[11]         The evidence tendered by the plaintiff in this case of her conversation with the defendant Ma at the scene of the accident is admissible in evidence.

[12]         The cell phone recording which was marked as Exhibit A on the voir dire and the transcript of the recording which was marked as Exhibit B may now both be marked as exhibits on the trial proper.

[13]         The fact that the defendant did not understand at the time of the conversation that what she said might be used in litigation is not a basis for excluding the evidence. This is a civil case. Unlike a criminal case, there is no issue here about voluntariness of a statement to a person in authority and no issue about compliance with the requirements of theCanadian Charter of Rights and Freedoms. Counsel for the defendant agrees that the plaintiff was not a person in authority and that she was not a state agent, as those terms are used in the context of confessions in criminal cases.

[14]         The defendant’s concern that only part of the conversation was recorded, that the defendant had hurt her head, that the defendant did not know the use to which the recording would be put, and that the statement might therefore not be reliable, are matters that can be explored in cross-examination and may go to the weight to be attached to this evidence. They do not form a basis for the exclusion of the evidence.

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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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