More on the Scope of Examination For Discovery Evidence At Trial
When a Defendant is examined for discovery in a BC Injury Claim damaging answers can be read in at trial as evidence against that defendant. A limit to this, however, is that if there is more than one defendant in a lawsuit the evidence can generally only be used against the defendant who was examined (click here to read a previous post discussing this restriction).
Reasons for judgment were released today demonstrating an exception to this restriction. In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 motor vehicle collision. The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.
In the course of the lawsuit representatives of GMC were examined for discovery. The Plaintiff obtained admissions which were useful in advancing their lawsuit. Subsequent to this, GMC sought bankruptcy protection under Chapter 11 of the US Bankruptcy Code. Because of the Bankruptcy the plaintiff’s could no longer compel the GMC representatives as adverse witnesses. The case was set for trial and the Plaintiff wished to read in the discovery answers of these witnesses as against the other defendants. The other defendants opposed this raising the limitation set out in Rule 40(27) of the BC Supreme Court Rules.
Mr. Justice Goepel agreed that the restriction in Rule 40(27) “does not allow exceptions and, accordingly, the discovery evidence would not be admissible pursuant to Rule 40(27) as against anyone other than GMC“.
However, the Court went on to hold that, despite this restriction, the Court could permit this evidence in as against the other defendants under Rule 40(4) of the rules of Court due to the circumstances of this case. Below I set out Mr. Justice Goepel’s useful analysis:
 Rule 40(4) deals with the evidence of witnesses who are otherwise unavailable. Rule 40(4) gives the court the discretion in certain defined circumstances to allow a transcript of prior evidence given by the witness to be put in evidence. The Rule reads:
40(4) Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence.
 Mr. Leffert and Mr. Uthe are both residents of the United States. They are not subject to this Court’s subpoena powers and the plaintiffs cannot compel their evidence at trial.
 The Rule is discretionary in nature. If the witness cannot attend for one of the stated reasons the court may, not must, allow a transcript of prior testimony to be put into evidence, subject only to the requirement of prior notice. In determining whether or not to allow the evidence to be admitted, the court must consider matters of trial fairness and potential prejudice to the parties.
 Rule 40(4) has been the subject of several recent decisions. Most have concerned applications to introduce a deceased plaintiff’s examination for discovery transcript. The authorities were reviewed and considered in Malik Estate v. State Petroleum Corp., 2007 BCSC 934, 74 B.C.L.R. (4th) 330. In Malik, the plaintiff sought to admit into evidence the transcript of the examination for discovery of Mr. Malik that had been conducted by the defendant. Mr. Malik had since died. After reviewing previous decisions dealing with Rule 40(4) and considering at some length the restated rules concerning the admission of hearsay evidence, Burnyeat J. concluded that the transcript of Mr. Malik’s discovery was admissible.
 The arguments in favour of admissibility are much stronger in this case than in Malik. In Malik, the plaintiff was seeking the admission of discoveries conducted by the defendant. Such discoveries often present an incomplete version of the case as an examiner may choose to refrain from examining on some aspect of the case in order to avoid revealing trial tactics. The potential for prejudice in such cases is great, particularly when the witness is deceased and the transcript is the only evidence of that witness that will be before the court.
 That is not the situation in the case at bar. Here the examination was conducted by the plaintiffs. It was conducted with the intent that the evidence would be read in at trial. Absent the bankruptcy, Leffert and Uthe could have been called as adverse witnesses and their evidence would have been admissible against all defendants.
 There is minimal prejudice to the remaining defendants if the evidence is admitted. Mr. Leffert and Mr. Uthe are clearly allied with the GM defendants. There is no reason to believe that they would not voluntarily attend at the trial if the GM defendants requested their attendance. If the evidence is admitted the remaining GM defendants can call Mr. Leffert or Mr. Uthe to explain any admissions that they may have made.
 It may well be pursuant to the Letters of Request that the plaintiffs could again obtain the evidence of Mr. Leffert and Mr. Uthe and then lead that evidence at trial. Rule 1(5) seeks to secure the just, speedy and inexpensive determination of every proceeding on its merits. To put the plaintiffs to the cost and expense of again examining these witnesses would be contrary to and the antithesis of Rule 1(5).
 Rule 40(4) refers to transcripts of other evidence. The plaintiffs in this case wish only to put into evidence those parts of the transcripts which assist their case. While admission of only a portion of the evidence may be objectionable in other circumstances, such as when the witness is deceased, I will allow the plaintiffs in this case to submit only portions of the transcript, subject to the defendants’ right to request that other parts of the discovery that are reasonably connected to those portions already introduced be also put into evidence:Foote v. Royal Columbian Hospital, (1982) 38 B.C.L.R. 222 (S.C.).
 Accordingly, the plaintiffs can read into evidence, pursuant to Rule 40(4), portions of the examinations of Mr. Leffert and Mr. Uthe. That evidence will become evidence at large and will be admissible for and against all parties. The plaintiffs must 14 days prior to trial specify the part of the discovery evidence that they intend to be given at trial. The remaining GM defendants will have the right to request that other parts of the discovery that are reasonably connected to those parts given in evidence also be put into evidence.
Now to continue my effort to cross reference civil procedure cases that I write about with the soon to be in force New BC Supreme Court Civil Rules.
Rule 40(27) will be replaced with the new Civil Rule 12-5(46). With respect to the restriction of who the discovery evidence can be used against, the new rule seems to be in line with the current rule.
Rule 40(4) is replaced with Rule 12-5(54) with identical language. Accordingly, this case should retain its value as a precedent once the new BC Supreme Court Civil Rules come into force.