Tag: Rule 1-3(2)

Plaintiff Expert Witness Allowed to Attend Defendant Examination for Discovery


The law in BC generally permits only parties and their lawyers to attend examinations for discovery.  In limited circumstances, however, the Court can permit others to attend a discovery relying on the BC Supreme Court’s ‘inherent jurisdiction‘.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Burgess v. Buell Distribution Corporation) the Plaintiff suffered “very serious personal injury” in a motorcycle accident.  He sued the manufacturer and scheduled an examination for discovery of an engineer employed with the Defendant.  The Plaintiff argued that his expert should be allowed to attend as the claim includes “matters requiring an understanding of technical concepts relating to the design, manufacture, and testing of motorcycles and sidecars“.
The Defendant opposed arguing this would add unnecessary time and expense to the Court Proceedings.  Mr. Justice Grauer disagreed with the Defendant and allowed the expert to attend.  In doing so the Court provided the following reasons:

[6] The Rules do not specifically address this issue, but it has certainly been the practice in this province that only the parties and their legal representatives may attend examinations for discovery in the absence of consent or an order of the court.

[7] In Ian Macdonald Library Services Ltd. v. P.Z. Resort Systems Inc. (1985), 67 B.C.L.R. 269, Madam Justice Southin, then of this Court, considered a similar application and said this:

[6]        I think the simple and sensible answer to this question is that counsel should be able to do so whenever the nature of the case is such that counsel cannot reasonably be expected to conduct a full and proper cross-examination of the witness being discovered without expert assistance.

[7]        Whether in any given case such expert assistance is necessary will depend, among other things, on:

1.         The issues in the action;

2.         The level of technical and scientific knowledge which can reasonably be expected of counsel generally at any given time;

3.         The extent of inconvenience to which the parties may be put if counsel must conduct part of an examination then adjourn it, consult with an expert and conduct the rest of it perhaps on some other occasion.

[9] I find that the issues in this case raise a level of technical and scientific knowledge beyond what can reasonably be expected of counsel generally.  While counsel normally are very adept at quickly, if temporarily, acquiring specialized knowledge relevant to their cases, it would be unwise I think for the court to second-guess the judgment of counsel as to what is required for the full and fair examination of an opposite party who possesses specialized expertise in this type of case.  Given the nature of the issues, I see nothing that strikes me as unreasonable about the request.

[10] What must be considered however is whether accommodating the request of examining counsel would result in prejudice to the party being examined.  If so, then the court must attempt to weigh that prejudice against the prejudice to the examining party of being deprived of expert assistance.

[11] In this case, no prejudice has been put forward by Harley-Davidson other than the concerns of disruption, increased expense, and extended time.  As to disruption, both counsel are experienced and I see no reason to suppose that this concern is likely to materialize in any meaningful way.  As to increased expense, the evidence does not satisfy me that such a result is likely.  Similarly, the time is at least as likely to be shortened as it is to be extended.

[12] Counsel for the defendant suggests that this will lead us down a slippery slope to a result where counsel will always request expert assistance at examinations for discovery in technical cases.  I very much doubt that that will follow, but in any event each case will be dealt with on its individual circumstances.  Where the examining party can establish the need, and the party being examined cannot establish prejudice, there is no reason to worry.  It did not worry Madam Justice Southin.

[13] As to the concept of proportionality, it seems to me that granting the relief requested is more likely to promote than inhibit the just, speedy, and inexpensive determination of this proceeding on its merits taking into account the amount involved, the complexity of the issues and the importance of conducting a full, fair and informed examination for discovery.  Accordingly, leave is granted as requested.

Plaintiff Awarded $9,500 Costs Despite $4,000 Damage Assessement


Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, with the “curious result” of costs recovery at over double the amount of assessed damages.
In last week’s case (Kargbo v. Chand) the Plaintiff was involved in a motor vehicle collision.  ICBC disputed both fault and injury.  At trial the Plaintiff’s claim was accepted and modest damages of $4,000 were awarded.  The Plaintiff sought her costs.  ICBC opposed arguing the Plaintiff did not have sufficient reason to sue in Supreme Court.
Earlier this year the BC Court of Appeal made it clear that more than the value of an ICBC Claim can be considered in deciding whether there is sufficient reason to sue in the Supreme Court.  Mr. Justice Williams went on to canvass factors other than value and concluded that the Plaintiff was entitled to $9,500 in costs under Rule 15-1(15).  The Court provided the following reasons:

[9] The problem ultimately reduces to this: If the Court determines that the plaintiff had sufficient reason for commencing or proceeding in the Supreme Court, she should be entitled to recover costs in accordance with Rule 15-1(15). If the Court finds that there was not sufficient reason for bringing the proceeding in this Court, then she is not entitled to recover her costs.

[10] In Reimann v. Aziz, 2007 BCCA 448, the Court of Appeal clarified that the issue has to be analyzed as at the point in time that the plaintiff initiated the action; there is no ongoing obligation to assess the quantum of claim.

[11] I have been provided with a number of decisions where judges of this Court have assessed the circumstances of cases to decide whether or not an order for costs is warranted. Obviously, the plaintiff bears the onus of establishing that there was sufficient reason for filing in the Supreme Court. It is not simply a matter of assessing the anticipated value of the claim. A number of factors have been identified in the cases as being relevant to the issue. These include the following (the list is not intended to be exhaustive):

1.         the legal or factual complexity of the case;

2.         the need for discovery of documents and examinations for discovery;

3.         the need for a judgment enforceable outside of British Columbia;

4.         a bona fide preference for a jury trial;

5.         access to the summary trial procedure available in Supreme Court; and

6.         the need for the plaintiff to have legal counsel, in light of the defendant’s denial of liability, dispute as to causation, injury or loss and allegations of contributory negligence, pre-existing conditions, previous causes and a failure to mitigate.

[12] In the present case, liability was denied and in the circumstances could reasonably have been expected to represent a challenge to prove. As well, the issue of damages had the real potential of being a problem. The plaintiff had a history of prior accidents and had been hospitalized shortly after the accident in question for matters not related to the accident. She was also injured in another more serious accident some several months after the accident at bar. It was the sort of case that a self-represented plaintiff would find daunting no doubt.

[13] Taking those considerations into account, it is my view that this plaintiff had sufficient reason for bringing her proceeding in the Supreme Court.

[14] As a parenthetical observation, it is true that a party such as this plaintiff could elect to pursue the claim in the Provincial Court with legal counsel, although the prospect of incurring the expense to do so without any right to recover court costs is a legitimate factor to consider. As well, where the plaintiff elects to bring suit in the Supreme Court, she runs the real risk of an adverse costs outcome if the action is unsuccessful.

[15] In the circumstances, it is my view that the plaintiff should be entitled to costs in accordance with the Rules of Court. I recognize that might appear to produce a curious result in that the award of costs is substantially greater than the damages that she recovered. However, if the matter is considered fairly and objectively and the relevant rule applied, that result follows.

[16] There is no question that the policy which underpins Rule 14-1(1) is to encourage parties with claims of modest value to bring their action in the Provincial Court, and to provide for a penalty against one who does not. That is consistent with the concept of proportionality which is a foundational consideration of the Court’s Rules.

[17] The clear default position will be that, with respect to claims where the award is less than $25,000, the plaintiff will not be entitled to an award of costs. Nevertheless, there will be situations where there is sufficient reason to bring the action in the Supreme Court. It will be for the Court to examine the circumstances of each particular case to determine whether or not there is sufficient reason.

For more cases addressing sufficient reasons to sue in Supreme Court you can click here to access my archived posts on this topic.

Case Planning Conferences Not Necessary to Get CPC Consent Order


Useful reasons for judgement were released yesterday (Stockbrugger v. Bigney)  by the BC Supreme Court, Vancouver Registry, finding that parties can apply for a Case Planning Conference Order by consent even if they have not had a Case Planning Conference.  While such a power is not set out expressly in the Rules of Court Mr. Justice Macaulay relied on the principle of proportionality to justify this result.  The Court provide the following helpful reasons:

[2] Even though the Supreme Court Civil Rules do not expressly provide for consent case plan orders, permitting the parties to file a consent case plan order is not prohibited and is entirely consistent with the object of the rules to secure the just, speedy and inexpensive determination of every proceeding on its merits (Rule 1?3(1)). Further, under sub-rule (2), the object is to be achieved, “so far as is practicable,” by conducting the proceedings in a proportionate manner.

[3] It is important, in considering proportionality, to keep in mind that every court appearance adds a layer of cost for the litigants. Part 5 of the rules, which governs case planning conferences, recognizes this factor. It does not require a case planning conference in every proceeding. In short, the parties may conduct a proceeding entirely without a case plan order if they so choose and the court finds no basis upon which to intervene and direct that a case planning conference take place.

[4] The foregoing is evident from Rule 5-1(1) which permits any party of record to request a case planning conference and Rule 5-1(2) which permits the court, any time after the pleading period has expired, to direct that a case planning conference take place. I see no reason for refusing parties the opportunity to consent to a proposed case plan without adding the cost of what may well be an entirely unnecessary hearing.

[5] Nothing in the rules prohibits a consent case plan order. If a party requests, or the court directs, that a case planning conference take place, Rule 5-3(3) requires that the judge or master conducting the case planning conference “must, at the conclusion of the case planning conference, make a case plan order.” I do not interpret that sub-rule as excluding a consent case plan order absent a case planning conference.

[6] Further, Rule 8-3 governs applications for orders by consent. An application for an order by consent, in the ordinary course, is made by filing a requisition, a draft of the proposed order and evidence that the application is consented to (Rule 8?3(1)(a)-(c)). Sub-rule (2) provides that a registrar may, upon being satisfied that the application is by consent and the appropriate materials filed, refer the application to a judge or master, depending on the jurisdiction necessary to make the particular order. Rule 8-3 does not give rise to an inconsistency with Rule 5-3(3).

[7] I observe that Rule 5-3(4) requires that case planning orders are to be in Form 21. Form 21 includes a case plan. Rule 8-3, on the other hand, provides for an order in Form 34. Form 34 is easily adaptable, as the parties sought to do here, to incorporate a case plan in compliance with Form 21. The solution is, in my view, adequate, proportionate and cost effective for the parties.

[8] Even if there is some inconsistency in the forms as drafted, Rule 1-2(3) permits the court to order that any provision of the rules does not apply “if all parties to a proceeding agree.” If necessary, I would apply this sub-rule to permit consent case plan orders.

Want of Prosecution, Proportionality and the New Rules of Court

One of the overarching changes in the current Suprene Court Rules is the introduction of the principle of ‘proportionality’.  When any applicaiton is brought before the Court the presiding Judge or Master must consider this concept in applying the Supreme Court Rules.  Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, discussing this in the context of a dismissal application.
In last week’s case (Ellis v. Wiebe) the Plaintiff sued various Defendants for alleged misrepresentation in the course of a purchase and sale agreement relating to property.   The lawsuit started in 2004 and by 2011 still had not been resolved.
The Defendant Wiebe brought an application to dismiss the lawsuit for want of prosecution (failure to prosecute in a timely fashion).  Madam Justice Bruce held that while the delay in the prosecution was inordenate and inexcusable there was no prejudice and did not dismiss the claim for this reason.  The Court did, however, go on to dismiss the claim on it’s merits.  Prior to doing so the Court made the following findings with respect to the application of the proporitonality principle in want of prosecution applications:
[8] The parties do not dispute the test to be applied by the court in determining whether an action should be dismissed for want of prosecution. The test is concisely summarized in Shields v. Nishin Kanko Investments Ltd., 2008 BCSC 36 at para. 25, wherein Mr. Justice Parrett cites the comments of Scarth J. at para. 3 of March v. Tam, 2002 BCSC 1125:

… I conclude that the principles of law which govern the exercise of the Court’s discretion in the circumstances of this case may in summary form be stated as follows: The defendants must establish that there has been inordinate delay and that this delay is inexcusable. If those two factors are established a rebuttable presumption of prejudice arises and the onus shifts to the plaintiff to prove on a balance of probabilities that the defendants have not suffered prejudice or that on balance justice demands that the action not be dismissed.

[9] The authorities also consistently hold that the court must look to the objects of the Supreme Court Rules as these relate to the particular circumstances of the case to determine whether an action should be dismissed for want of prosecution….

[10] When the Supreme Court Rules were amended in July 2010, a new subsection was added to Rule 1-3 to further refine the meaning of “just, speedy and inexpensive determination”. Rule 1-3 (2) provides as follows:

(2)   Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)      the amount involved in the proceeding,

(b)      the importance of the issues in dispute, and

(c)      the complexity of the proceeding.

[11] In my view, Rule 1-3 (2), in part, reflects the approach adopted by our Court of Appeal to the issue of dismissal for inordinate delay; that is, the facts of each case have a significant impact on the outcome of any particular application for dismissal based on want of prosecution. While the principles of law are relatively straightforward, it is the application of these principles to widely varied fact situations that is critical. As noted in Rhyolite Resources Inc. v. CanQuest Resource Corp., 1999 BCCA 36, at para. 16:

Cases vary so infinitely that it is not always easy to apply to one factual situation the decision in another very different factual situation. However, it is the task of the court to seek to apply in a rational fashion the principles that have been laid down in the decided cases, always bearing in mind that the facts in each case are going to have a significant influence on the actual outcome of the individual application. I believe, with respect, that this approach or principle can be found well expressed in a case that was cited to us, Lebon Construction Ltd. v. Wiebe (1995), 10 B.C.L.R. (3d) 102 (C.A.), a recent decision of this court. That was a builder’s lien case and in that class of case, one would expect a swifter pace to the action than might be the case of say a personal injury case where a very serious injury and the course of recovery of a plaintiff must be assessed over time. Although it is always desirable to move on promptly with litigation, the simple fact is that in certain cases the interests of justice demand a rather more stately and measured pace than would be proper with regard to another class of action. Although it is desirable that all cases proceed with reasonable promptitude, the key word is reasonable and the ultimate consideration must always be: what are the interests of justice?

More on Document Disclosure and the New Rules of Court: MSP and Pharmanet Printouts


As previously discussed, the New Rules of Court have limited the scope of pre-trial document production and further have introduced the concept of ‘proportionality‘ in deciding what types of documents need to be disclosed in litigation.  The law continues to develop with respect to the application of these changes and recently the BC Supreme Court released reasons for judgement addressing two classes of documents which are often requested in BC personal injury lawsuits; MSP and Pharmanet Printouts.
In the recent case (Anderson v. Kauhane and Roome) the Plaintiff was injured in a 2008 BC motor vehicle collision.  She sued for damages.  In the course of the lawsuit the Defendant requested her MSP and Pharmanet printouts (government documents which keep track of doctors visits and prescption drug purchases).  These documents were routinely produced in injury lawsuits under the former Supreme Court Rules.
The Plaintiff opposed arguing that the narrower scope of the New Civil Rules no longer made such documents automatically producible.  Master Baker agreed and dismissed the Defence application for production.  In doing so the Court considered disclosure of these documents both under that narrower ‘material fact’ test in Rule 7-1(1)(a) and the broader Peruvian Guano type disclosure under rule 7-1(11).  In dismissing the application Master Baker provided the following useful reasons:
The question is: do the documents in dispute, ie, MSP and Pharmanet, come withing the terms of either Rule 7-1(1)(a), ie, documents that can be used by a party of record to prove or disprove a material fact or that will be referred to at trial or, if not, do they come under category 7-1(11), generally, in the vernacular, referred to as the Guano documents…There is no question that there is a higher duty on a party requesting documents under the second category…that in addition to requesting, they must explain and satisfy either the party being demanded or the court, if an order is sought, with an explanation “with reasonable specificity that indicates the reason why such additional documents or classes of documents should be disclosed”, and again, there is no doubt that the new Rules have limited the obligation for production in the first instance to the first category that I have described and has reduced or lessened the obligation for production in general…
The question today is, would these documents prove a material fact if available?  I think not….I am not satisfied that at this juncture they can or will prove a material fact…
I acknowledge that the defence has pleaded – and I will say this – in what I think are now becoming boilerplate pleadings, has pleaded pre-existing conditions…I am not satisfied that, by simple pleading, that somehow opens up the matter to the higher standard represented by 7-1(11).  The obligation is still on the defendant to make that case, as far as I am concerned, and that moves me to the second aspect of this, has a case been made under 7-1(11)?
Has there been, in other words, reasonable specificity indicating why the additional documents or classes of documents should be disclosed?  I think not….It seems, in the circumstances, disproportionate to me to give an open-ended order that all Pharmanet records, for example, some seven years, or records with Medical Services Plan going back to January 1, 2004, are proportionate to the claim as it is expressed and understood at this point.  So the application is dismissed.
As far as I am aware this recent case is unpublished but, as always, I am happy to provide a copy of the reasons to anyone who contacts me to request one.

More on the New Rules of Court and Document Disclosure: The Proportionality Factor


As recently discussed, a developing area of law relates to the extent of parties document production obligations under the new Rules of Court.   The starting propisition is that parties need to disclose a narrower class of documents then was previously required.  A Court can, on application, order further disclosure more in line with the “Peruvian Guano” test that was in force under the former rules.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, making such an order.
In today’s case (Whitcombe v. Avec Insurance Managers Inc.) the Plaintiff was employed as an Insurance Underwriter with the Defendant.  The Plaintiff was let go and sued for wrongful dismissal.  The Defendant counterclaimed alleging they lawfully terminated the Plaintiff’s employment and further making allegations of misfeasance by the Plaintiff.
In the course of the lawsuit the parties were dis-satisfied with each others lists of documents.  They each applied for further disclosure.  Master Caldwell granted the orders sought finding that the concept of ‘proportionality‘ calls for greater disclosure in cases of “considerable importance“.  In granting the applications Master Caldwell provided the following reasons:

[10]         In short, both parties make serious allegations of actual misfeasance and in particular allegations which may well have a significant impact on the other’s reputation in the insurance industry and on the parties’ respective abilities to continue in business or to be employed in a professional capacity.  This is therefore a matter of considerable importance and significance to the parties regardless of the quantum of immediate monetary damage.

[11]         I find this to be important to my consideration of proportionality as directed in Rule 1-3(2) when interpreting and applying Rule 7-1.  In my view, where, as here, the issues go beyond negligence and involve opposing allegations of misfeasance, proportionality must be interpreted to allow the parties a wider, more Peruvian Guano type disclosure in order to defend and protect their respective professional reputations and abilities to carry on in the business community.

[12]         Here one or both sides have levelled allegations involving malice, bad faith, arbitrariness, lack of integrity/fidelity/loyalty and incompetence at the other.

[13]         In addressing Rule 7-1 in the case of Biehl v. Strang, 2010 BCSC 1391, Mr. Justice Punnett said at paragraph 29:

I am satisfied that, if otherwise admissible, the requested production is relevant and could prove or disprove a material fact. Rule 7-1 does not restrict production to documents that in themselves prove a material fact. It includes evidence that can assist in proving or disproving a material fact.

[14]         I am satisfied that in these circumstances the disclosure sought by both parties in their applications is appropriate in that it seeks evidence or documents that can or may well assist in proving or disproving a material fact.

Interestingly the Court implied that Peruvian Guano like disclosure likely will not be made in motor vehicle collision claims noting that “This is not a simple motor vehicle type case, arising in common context and involving straight forward negligence issues and quantification of physical injury compensation.”

Scope of Discovery Under the New Rules of Court


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of both discovery of documents and examinations for discovery under the new Rules of Court.
In today’s case (More Marine Ltd. v. Shearwater Marine Ltd) the Plaintiff companies sued the Defendant alleging the breach of marine insurance policies.  The Plaintiff was self represented.  He examined an insurance adjuster that worked for the Defendant.  At discovery the Defendant raised numerous objections including an objection to questions addressing “general practices in the insurance industry“.  A motion was brought seeking guidance addressing whether these questions were permissible.
Mr. Justice Smith held that this line of questioning was appropriate and ordered that a further discovery take place.  In doing so the Court provided perhaps the most extensive judicial feedback to date about the changes with respect to discovery obligations under the New Rules of Court.  Mr. Justice Smith gave the following useful reasons:

[3]             The scope of proper questioning on an examination for discovery is set out in Rule 7-2 (18) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]:

Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action, and

(b)        is compellable to give the names and addresses of all persons who reasonably might be expected to have knowledge relating to any matter in question in the action.

[4]             The new Rules came into effect on July 1, 2010, but the language in rule 7-2 (18) is identical to the former rule 27 (22).  As Griffin J. said in Kendall v. Sun Life Assurance Company of Canada, 2010 BCSC 1556 [Kendall] at para. 7 “the scope of examination for discovery has remained unchanged and is very broad.”  In Cominco Ltd. v. Westinghouse Can Ltd. (1979), 11 B.C.L.R. 142 (C.A.) [Cominco], an early and leading case under the former rule, the Court of Appeal said at 151 that “rigid limitations rigidly applied can destroy the right to a proper examination for discovery.”  The court in Cominco also adopted the following statement from Hopper v. Dunsmuir No. 2 (1903), 10 B.C.R. 23 (C.A.) at 29:

It is also obvious that useful or effective cross-examination would be impossible if counsel could only ask such questions as plainly revealed their purpose, and it is needless to labour the proposition that in many cases much preliminary skirmishing is necessary to make possible a successful assault upon the citadel, especially where the adversary is the chief repository of the information required.

[5]             In Day v. Hume, 2009 BCSC 587 this court said at para. 20:

The principles emerging from the authorities are clear. An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.

[6]               While Rule 7-2 (18) is the same as its predecessor, the new Rules create a distinction that did not previously exist between oral examination for discovery and discovery of documents.  The former rule 26 (1) required a party to list all documents “relating to every matter in question in the action.”  Although disclosure in those terms may still be ordered by the court under Rule 7-1 (14), the initial disclosure obligation is set out more narrowly in Rule 7-1(1):

(1)        Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,

(a)        prepare a list of documents in Form 22 that lists

(i)         all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and

(ii)        all other documents to which the party intends to refer at trial, and

(b)        serve the list on all parties of record.

[7]             Under the former rules, the duty to disclose documents and the duty to answer questions on oral examination were therefore controlled by the same test for relevance.  Under the newRules, different tests apply, with the duty to answer questions on discovery being apparently broader than the duty to disclose documents.

[8]             Although that may appear to be an anomaly, there are at least two good reasons for the difference.  One reason is that if the court is to be persuaded that the broader document discovery made possible by rule 7-1(14) is appropriate in a particular case, some evidence of the existence and potential relevance of those additional documents will be required.  The examination for discovery is the most likely source of such evidence.

[9]             The second reason relates to the introduction of proportionality as a governing concept in the new Rules.  Rule 1-3 (2) states:

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[10]         The  former rule governing discovery of documents was interpreted according to the long-established test in Compagnie Financière du Pacifique v. Peruvian Guano Company (1882), 11 Q.B.D. 55 at 63 (C.A.):

It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party … either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party … either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences…

[11]         The new Rules recognize that application of a 19th century test to the vast quantity of paper and electronic documents produced and stored by 21st century technology had made document discovery an unduly onerous and costly task in many cases.  Some reasonable limitations had become necessary and Rule 7-1 (1) is intended to provide them.

[12]         The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.

[13]          As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. This interplay was described in Kendall at para. 18:

A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery.

Wage Loss Claims, Document Disclosure and Proportionality


As previously discussed, the new BC Civil Rules have changed the test of document production in the pre-trial discovery process.  The test has been narrowed from documents “relating to every matter in question in the action“ to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.  In addition to this the Court must take the concept of ‘proportionality‘ into account when considering an order to produce third party records.
Reasons for judgement were released considering this narrower obligation in the context of an ICBC claim.
In today’s case (Tai v. Lam) the Plaintiff was involved in a 2006 motor vehicle collision.  The Plaintiff was injured and claimed damages.  The Defendant asked that the Plaintiff produce his bank statements from the date of the accident onward in order to “defend against (the Plaintiff’s) claim for loss of earning capacity”  The Plaintiff refused to provide these and a motion was brought seeking production.    Master Baker dismissed the motion and made the following useful comments about document disclosure obligations under the new rules and the concept of proportionality:

[5]             I am not going to make the order sought.  I agree entirely with Mr. Bolda’s view of this, which is that it is essentially one production too far, that the information and details sought goes beyond what is reasonable, even on a redacted basis.  To ask that all the bank statements be produced is a broad, broad sweep.

[6]             Sitting here listening, it struck me, it is as if a party who commences proceedings and says, “look, I have been injured and I have suffered financial losses” is inviting some kind of a Full Monty disclosure, that they are expected to produce all financial information they might ever have out there.  Even if it is suggested or offered today that that be done on a redacted basis, it is still, in my respectful view, a requirement for production that is excessive.

[7]             It certainly raises big issues about privacy and if one says, “well, redaction would fix that”, what does it take for counsel to sit down and patiently, carefully redact their client’s bank records for four and a half years?  If that is not a question of confidentiality and privacy, it is a question of proportionality, which is just as concerning to me today as the other issues.

[8]             The banking records.  I am also persuaded by Mr. Bolda’s argument, and a  common position taken today, that the judgment will be one of assessment, not calculation, that the trial judge will have multiple facets to consider and amongst them the gross income.  And while it is for the defence to present and structure its case as it wishes, it seems to me that if it successfully attacks any of these claims for expenses it can only increase Mr. Tai’s income, and I cannot see the value in that perspective.

[9]             I know that until recently the standard in this province was Peruvian Guano and locally Dufault v. Stevens, but that standard has changed.  There has to be a greater nexus and justification for the production of the documents in a case, and I am satisfied that that standard has not been met here today, so that the application is dismissed.

ICBC Unidentified Motorist Claims and Post Accident Advertising

(IPDATE:  The case discussed in the below post was upheld on Appeal on October 26, 2011)

As previously discussed, victims of injuries sustained in collisions caused by “unidentified motorists” can seek compensation directly from ICBC under section 24 of the Insurance (Vehicle) Act provided that they comply with this section.  One of the requirements of s. 24 is for the claimant to make “all reasonable efforts” to ascertain the identity of the at fault motorist.  One reasonable effort a Plaintiff can take is to advertise for witnesses.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing post accident advertisements and explaining that these are not always necessary to bring a successful s. 24 claim.
In today’s case (Nicholls v. Anderson) the Plaintiff was involved in a single vehicle motorcycle accident in 2005.  He lost control of his motorcycle when he “encountered a diesel fuel spill on the highway“.  He alleged an unknown motorist was at fault for leaving this spill on the road and sued ICBC directly for his damages.  ICBC applied to dismiss the lawsuit arguing the Plaintiff failed to make reasonable efforts to determine who was responsible for the diesel spill.  Mr. Justice Saunders disagreed and dismissed ICBC’s application.  In doing so the Court provided the following useful reasons about advertisements and s. 24 claims:

[13]         The last step contended by ICBC is one in which the claimant ought reasonably to have taken is the placing of a newspaper advertisement or advertisements. This aspect of ICBC’s argument has been of the greatest concern to me on this application because it is a step that could have been taken at relatively modest cost, and because in this particular case the claimant took absolutely no positive steps aimed at ascertaining the identity of the persons responsible.

[14]         I do not think that this argument can be answered solely by the claimant pointing — as was done in argument — to the fact that the accident did not happen in a well-defined geographic area or one where there was a specific readership of a specific newspaper likely identifiable. In my view, if there was an obligation to place a newspaper advertisement or advertisements, they could have been placed in community newspapers serving the north side of the Fraser in the areas of Mission and Hope and perhaps Maple Ridge, or alternatively, as ICBC argued today, in one or both of our Vancouver daily newspapers which enjoy a readership outside the greater Vancouver area.

[15]         Mr. Nicholls perceived himself in the statement that he gave within days of the accident as having sustained more than a trivial injury. If his only recourse legally were to pursue the tortfeasor, the person responsible for the spill, what steps would he have taken if acting rationally in pursuit of his own interests?  Would he have gone to the extent of placing such newspaper ads?

[16]         In my view, the reality is that there would have been only an extremely remote chance of such a line of enquiry being successful. If there ever was a time when the citizens of this province had a habit of scamming the legal notices printed in the daily or weekly newspapers’ classified sections, that day has long passed. The presumed target for any such advertisement would have been someone who would happen to have been following the truck in question in daylight in the vicinity of the accident scene, who would have seen the diesel oil splashing, would have made mental note of it as something significant, and then would have been able to make note of the truck’s appearance with sufficient particularity to identify the driver. That person, if one existed, would then have to read the advertisement in question. The possibility of all of this is so remote that in my view for the claimant in his position to have undertaken even the modest cost of taking out such an advertisement would have been absurd.

[17]         That is not to say that it would be inappropriate in any case for a claimant injured in a motor vehicle accident to take that step. As I say, the reasonableness of a person’s conduct depends in part on the benefit to be gained if they undertake  a course of action. I would not say, certainly not on this application today, that a person who had suffered a catastrophic injury involving quadriplegia or brain injury or the like could feel free not to take a positive step such as taking out a newspaper advertisement or posting an internet classified advertisement in an attempt to locate a tortfeasor, no matter how remote the chances of that being successful might seem; but in this case, given the claimant’s relatively modest injuries as alleged and as attested to in his statement, I do not think that would have been a reasonable requirement on his part.

This case is interesting because the Court went further and struck the paragraphs of ICBC’s Statement of Defence alleging that the identity of the offending motorist was ascertainable.  The Court cited the New BC Supreme Court principle of “proportionality” in arriving at this decision.   Mr. Justice Saunders provided the following reasons:

[18] So the application is dismissed, and in my view it is appropriate in this case to go further than that and to dispose of the defence. In my view in all likelihood I know as much about the reasonableness of the claimant’s actions, given the evidence that has been presented, as a trial judge would, and so I am able to rule conclusively on that issue. I also acknowledge the points made by counsel for ICBC and counsel for the claimant as to the need to under the new Rules to have regard to proportionality. So, in conjunction with dismissing the application, I rule that paras. 2 and 4 of the statement of defence of ICBC be struck. Those are the paragraphs in which it is alleged that the identity of the driver/owner was ascertainable and that the claimant has not complied with the Act in failing to make all reasonable efforts to ascertain the identity of the unknown driver.

Rules of Court Update: Video-Conference Evidence and "Proportionality"


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:

[9]             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.

[10]         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.

[11]         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.

[12]         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.

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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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