Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a witness who is willing to communicate through counsel should not be compelled to attend a pre-trial examination under oath.
In today’s case (Cabezas v. HMTQ) the Plaintiff was involved in a single vehicle accident and sued the Defendants claiming negligent highway maintenance. In the course of the lawsuit the Plaintiff attempted to speak with and the “Capilano defendants provided a summary of the evidence Mr. Colville was expected to give should the matter proceed to trial. She stated further: “to the extent that you still wish to speak to Mr. Colville, he has asked that this be arranged through us and that we be present.”
The Plaintiff brought an application to compel pre trial examination under oath of this witness but this was dismissed with the Court noting that a witness willing to speak through counsel is indeed being responsive. In reaching this conclusion Master Harper provided the following reasons:
 Rule 7-5(1) provides as follows:
(1) If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may:
(a) order that the person be examined on oath on the matters in question in the action, and
(b) either before or after the examination, order that the examining party pay reasonable lawyer’s costs of the person relating to the application and the examination…
 Rule 7-5 sets out a protocol which must be followed before an application for an order for a pre-trial examination of a witness can be made. The applicant must establish that the proposed witness has refused or neglected on request by the applicant to give a responsive statement either orally or in writing relating to the witness’ knowledge of the matter in question or has given conflicting statements (Rule 7-5(3)(c)(i) and (ii)).
 The fact that the witness has chosen to communicate through counsel does not amount to a refusal to give a responsive statement (Rintoul v. Granger, 2008 BCSC 1852 at para. 24).
 Mr. Colville is agreeable to attending an interview in the presence of counsel.
Buyer’s Remorse – that’s the feeling of regret people sometimes get after making a big purchase or an important decision. When people settle their ICBC Injury Claim they sometimes get buyer’s remorse. They can regret the settlement and wish they could undo it.
In most circumstances an ICBC Injury Settlement can’t be set aside after a full and final release has been signed. Sometimes though, in circumstances such as fraud or unconsionability, these settlements can be undone.
Reasons for judgement were released today dealing with an interesting issue in the context of a case alleging an unfair ICBC settlement. In today’s case (Coates v. Triance) the legal issue was whether a Plaintiff could examine the ICBC adjuster under oath before the trial began to discuss the circumstances of a supposed settlement.
The Plaintiff was involved in a motor vehicle accident in 1999. In May of 2000 the plaintiff apparently signed a full and final release. The Plaintiff was 19 at the time. The Plaintiff later sued the alleged at fault motorist. That motorist was insured with ICBC. In the Statement of Defence the defendant stated that the claim was already settled. The Plaintiff responded that the release should be set aside because the “settlement was manifestly unfair and unconsionable”.
As the lawsuit progressed the Plaintiff’s lawyer wished to examine the ICBC adjuster involved in the settlement discussions under oath. The ICBC adjuster refused and a Court motion was brought to compel the examination. The motion was granted and the Court ordered that the ICBC adjuster undergo a pre-trial examination to canvass the details of the supposed settlement. The highlights of Madam Justice Griffin’s reasons were as follows:
 Thus, a key factual issue in this case on the pleadings is whether a settlement and release procured by ICBC from the plaintiff, when she was 19 and unrepresented, should be set aside. As mentioned, the witness, Ms. Lo, is the adjuster who procured the settlement, and the plaintiff’s position is that she acted inappropriately.
 Ms. Lo was a participant in a key factual event in question in this case. What she knows and does not know about the circumstances of her dealings with the plaintiff and the settlement and release relates to a material issue at trial: the enforceability of that settlement and release.
 Sometimes it is preferable to deal with a non-party witness by written questions and answers. But the fact that a witness is willing to proceed this way is not a complete answer to an application for a Rule 28 examination. In this regard, I refer to the case of Cheema v. Kalkat, 2009 BCSC 736.
 Here there is evidence of the questions posed in writing and the written answers. There were 200 questions. I find the answers provided by Ms. Lo to be not responsive in a way which will help the plaintiff learn sufficient information to be able to assess the merits of the issue of whether or not there was an enforceable settlement and release. The responses provided by Ms. Lo leave many questions unanswered on the material factual issues to which she was a witness. Many responses are superficial and unhelpful.
 I conclude that if the plaintiff does not have the opportunity to examine this witness, the plaintiff cannot assess her case before trial and therefore cannot form an informed view and possibly settle the case, and the plaintiff could be taken by surprise at trial…
 There is no question that an examination of Ms. Lo will assist in a determination of the proceeding on the merits. She is a key witness to events that form a central issue in the case.
 There is also no question that an examination of her will be just. She is not prejudiced in any way. Her involvement in the material events arose in the course of her employment with ICBC, which continues to be her place of employment. Her evidence on these matters will not be personally embarrassing or tread on an area of her own personal privacy. On the other hand, the plaintiff could be prejudiced if she is not allowed to investigate and explore Ms. Lo’s evidence in advance of trial.
 Here, I consider that a Rule 28 examination will be the most speedy and inexpensive way of proceeding to determine this case on its merits. The written questions and answers exchanged already clearly reveal to me that the questions for Ms. Lo involve a scope of examination that is appropriate but that is most efficiently conducted by oral examination rather than by written questions and answers. I am satisfied that more time will be taken up by lawyers drafting further written questions and drafting written responses than would be taken up by a Rule 28 examination…
 In this case, the most efficient way of proceeding so as to allow the merits of the issues in the case to be ultimately determined, would be by way of a free-flowing examination of the witness as counsel for the plaintiff sees fit, rather than requiring the plaintiff to follow the court’s checklist of acceptable and unacceptable questions.
 As noted in Yemen Salt Mining Corp. v. Rhodes-Vaughan Steel Ltd. (1977), 3 B.C.L.R. 90 at 100, a Rule 28 examination may extend to all that is relevant generally to all parties in the action.
 Therefore, in allowing the plaintiff’s application, I make no ruling on the acceptability of particular questions in the previously provided list of questions or on the validity of any objections to those questions.
Now to Cross-Reference: Do the New BC Supreme Court Civil Rules change the law relating to pre-trial examination of witnesses? Not really. Rule 28 is reproduced almost identically in the New Rules and can be found at Rule 7-5. The requirements mirror the current wording of the rule so this case ought to retain it’s value as a precedent after the New Rules come into force.
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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