Tag: Rule 12-5

Discovery Evidence and the Principled Exception to the Hearsay Rule

Written by admin on May 4, 2012. Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.

As previously discussed, one of the limits of examination for discovery evidence at trial is that it is generally only admissible against the person being examined. Rule 12-5(46) permits the Court to make exceptions to this restriction in appropriate circumstances. Reasons for judgement were released earlier this year by the BC Supreme Court, Vancouver Registry, addressing one such exception.
In the recent case (Yamakami v. Whittey) the Plaintiff was injured in an intersection crash. Fault was contested. In the course of the lawsuit the Defendant was examined for discovery. Prior to trial the Defendant died.
The Defendant’s lawyer wished to rely on his examination transcript at trial in support of the Defence case. Mr. Justice Fitch allowed this finding it was necessary to do so. Interestingly, although the Court admitted the evidence finding that an examination for discovery created the necessary safeguards to meet the principled exception to the hearsay rule, the Court ultimately placed little weight on the Defendant’s version of events. In allowing the evidence to be introduced Mr. Justice Fitch provide the following reasons:
[3] Mr. Whittey, who was 81 years of age when the accident occurred, died before trial but after his examination for discovery was completed on May 11, 2010. Counsel for the defendants applied at the outset of the trial to have his examination for discovery admitted in evidence for the truth of its contents under the principled approach to the hearsay rule. The application was opposed. As Mr. Whittey was deceased at the time of trial, the necessity criterion was met. Counsel for the plaintiff argued that despite the existence of process-based substitutes compensating for the loss of an ability to engage in contemporaneous cross-examination of the defendant (the oath, cross-examination and the existence of a verbatim record of the examination for discovery) the evidence Mr. Whittey gave on the examination for discovery was so inherently unreliable that the test of threshold reliability at the admission stage was not met. In oral reasons for judgment delivered November 4, 2011, I concluded that the process-based compensators present in this case provided a satisfactory basis for evaluating the reliability of the evidence in issue. Accordingly, I exercised my discretion to admit the evidence but made clear that it was for me, at the end of the day, to determine the ultimate or actual reliability of the evidence and the weight it should be accorded.

Court Refuses To Sever Liability From Quantum Where Damages Disputed

Written by admin on April 16, 2012. Posted in BCSC Civil Rule 12, ICBC Liability (fault) Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, (Hou v. McMath) refusing to sever liability from quantum in a personal injury trial where the Defendant not only disputed fault but also took the position that “no compensable injury” occurred.
Interestingly the Court did go on to proceed on the issue of ‘fault’ without making a formal negligence finding. In doing so Madam Justice Kloegman provided the following reasons:
[2] Both parties desired to sever the issue of liability from damages and proceed on the question of liability alone. However, due to the defendant’s position that this accident caused no damage or compensable injury to the plaintiff, I refused to make an order severing liability from quantum. It is basic tort law that without damages there can be no finding of negligence or liability. I suggested instead that we proceed to hear viva voce evidence on the sole issue of “fault” for the accident; that is, who breached the standard of care of the reasonable, prudent driver in the circumstances?
The trial focused on the colour of the light in an intersection collision ultimately finding that the Defendant drove through a red light finding him at fault for the crash.

Quantum Before Liability?

Written by admin on April 3, 2012. Posted in BCSC Civil Rule 12, Uncategorized. 51 Comments on Quantum Before Liability?

Rule 12-5(67) allows the BC Supreme Court to order that one issue “be tried and determined before the others“.
In the personal injury context, where fault is contested, it is not unusual for a Court to agree to determine the issue of fault before valuing the case. The reason being that if a Defendant is found faultless splitting the issues can save both parties the substantial costs associated with proving the value of the claim.
Interestingly, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing the value of a claim before determining the issue of fault.
In yesterday’s case (Simmavong v. Haddock) the Plaintiff was involved in a 2007 head on collision. The Plaintiff suffered various injuries and the value of her claim was assessed at just over $332,000 in global damages. In what must be a very rare set of circumstances, the Court did so prior to the issue of fault being addressed. The parties apparently consented to this turn of events and unfortunately the judgement does not provide any discussion addressing when such an approach is warranted but does provide the following introductory comments:

[1] This trial concerns the plaintiff’s claim for damages arising from a motor vehicle accident, which occurred on June 24, 2007.

[2] Liability for the accident is denied as there is an action yet to be commenced relating to the plaintiff’s daughter. The parties have agreed to litigate the claim for the plaintiff’s damages only at this time.

Examination For Discovery Transcripts and the Adverse Party Limitation

Written by admin on December 5, 2011. Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized. 59 Comments on Examination For Discovery Transcripts and the Adverse Party Limitation

Although examination for discovery transcripts can be read into evidence at trial, the Rules of Court limit the evidence to being used against “the adverse party who was examined“. In other words, a litigant can’t use their own transcript to bolster their own case. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this limitation.
In last week’s case (Haughian v. Jiwa) the Plaintiff was involved in a motor vehicle collision. The Defendant brought a summary trial application seeking to dismiss the claim. The Plaintiff produced an affidavit which stated that “in my examination for discovery I described precisely how the accident occurred” and went on to attach “as an exhibit 29 pages for her examination for discovery conducted by counsel for the defendants“.
The Defendant objected to this evidence arguing it was inadmissible. Mr. Justice Punnett agreed and provided the following reasons explaining the limitation of discovery evidence at trial:

[8] The plaintiff’s affidavit appends portions of her examination for discovery by counsel for the defendants. The defendants object to the tendering of discovery evidence in this way.

[9] Summary applications are based on affidavit evidence. However, they are still trials and as such are governed by the rules and evidentiary requirements of a regular trial. The followingSupreme Court Civil Rules (the “Rules”) are relevant:

9-7(5) Unless the court otherwise orders, on a summary trial application, the applicant and each other party of record may tender evidence by any or all of the following:

(a) an affidavit;

…

(c) any part of the evidence taken on an examination for discovery;

…

[10] However, the breadth of the statement in part (c) above is restricted by Rule 12-5(46) which provides:

(46) If otherwise admissible, the evidence given on an examination for discovery by a party … may be tendered in evidence at trial by any party adverse in interest, unless the court otherwise orders, but the evidence is admissible against the following persons only:

(a) the adverse party who was examined;

…

[12] The defendants’ objection is that only the defendants can tender the plaintiff’s examination for discovery evidence. They rely on the rules cited above as well as Tesscourt Capital Ltd. v. FG Nutraceutical Inc., 2011 BCSC 814; Mikhail v. Northern Health Authority (Prince George Regional Hospital), 2010 BCSC 1817; Schwartz v. Selkirk Financial, 2004 BCSC 313; Pete v. Terrace Regional Health Care Society, 2003 BCCA 226; Great Canadian Oil Change v. Dynamic Ventures et al, 2002 BCSC 1295, and Shiels v. Shiels (1997), 29 B.C.L.R. (3d) 193 (S.C.).

[13] I am satisfied that the discovery evidence sought to be introduced by the plaintiff cannot be relied upon by the plaintiff for the truth of its contents.

Defendant Called During Plaintiff's Case in Traumatic Brain Injury Claim

Written by admin on July 5, 2011. Posted in BCSC Civil Rule 12, Civil Procedure, ICBC Brain Injury Cases, Uncategorized. 45 Comments on Defendant Called During Plaintiff's Case in Traumatic Brain Injury Claim

In most BC Supreme Court lawsuits Plaintiff’s obtain evidence from the opposing side prior to trial by way of examination for discovery. Helpful portions of the discovery transcript are then read into the trial record in support of the Plaintiff’s claim. This is a controlled way to lead helpful evidence from a potentially damaging source.
There is, however, another way (albeit a riskier way) to use the Defendant in support of a Plaintiff’s claim. The Rules of Court allow one party to call an “adverse party” as part of their case in chief with delivery of a subpoena and witness fees. Rule 12-5(22) goes further and allows a Plaintiff to put the Defendant on the witness stand without notice if the Defendant is “in attendance at the trial“. Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this seldom used option in action.
In last week’s case (Rintoul v. Gabriele) the Plaintiff pedestrian was struck while in a cross-walk. The Plaintiff was born without upper limbs and after being struck “would have been unable to break her fall. In landing on the pavement, she hit her head and was briefly unconscious“.
Both liability and quantum (fault and value of the case) were at issue with the Defendant arguing the Plaintiff was to blame at least in part for the collision and that her on-going issues were not related to the brain trauma suffered in the collision. Mr. Justice Saunders disagreed and found the Defendant fully at fault for the impact. In the course of the trial the Plaintiff’s lawyer took advantage of Rule 12-5(22) and put the Defendant on the stand as their first witness. Damaging admissions were extracted which could not be remedied when the Defendant was re-called as a witness in the Defence case. In highlighting this interesting turn of events Mr. Justice Saunders provided the following reasons:
[7] The defendant, Ms. Gabriele, was in attendance on the first day of trial. She was called to the witness stand as the first witness for the plaintiff’s case, and cross-examined…

[14] Ms. Gabriele testified that she was turning her vehicle and had just started to enter the pedestrian crosswalk, going perhaps 10 or 15 km/h, when she felt a bump, and saw a flash of a face in her headlights. She stopped and got out, and ran to the front of her vehicle. The plaintiff was lying unconscious in the crosswalk.

[15] Ms. Gabriele was not challenged on her estimate of her speed.

[16] Ms. Gabriele was asked why she did not, after looking to the right, look to the left again before making her turn, to see if any of the pedestrians she had previously seen on the southeast corner were walking in the crosswalk. She replied, “I made a mistake”….

[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.

[25] I do not accept this second version of events…

The Court went on to conclude that the Plaintiff did suffer from long term consequences as a result of her injuries and assessed global damages at just over $950,000 including non-pecuniary damages of $175,000. In addition to the above point of civil procedure, this case is worth reviewing in full for Mr. Justice Saunders lengthy discussion of the expert evidence called to address the issue of the Plaintiff’s traumatic brain injury.

Credibility Cases Not Suitable for Severance of Issues and Summary Trial

Written by admin on June 22, 2011. Posted in BCSC Civil Rule 12, BCSC Civil Rule 9, Uncategorized.

Earlier this year Mr. Justice McEwan provided reasons for judgement finding that an order to sever issues under Rule 12-5(67) is a prerequisite to having only part of a case tried by way of summary trial. Today, reasons for judgement were released confirming this point and finding that where credibility is an issue a case will likely not be suitable for severance or summary trial.
In today’s case (Erwin v. Helmer) the Plaintiff alleged injuries in a trip and fall incident. She sued for damages under the Occupiers Liability Act. The Defendants applied to dismiss the case via summary trial. Mr. Justice McEwan dismissed the application finding that a a summary trial was not appropriate. In doing so the Court provided the following reasons regarding credibility, severance and summary trials:

[9] This case inherently turns on credibility. While counsel for the plaintiff has not objected to severance, the court must still be concerned with the proper application of summary process and with the sufficiency of the evidence on which it is expected to rule that a party will be deprived of a full hearing.

[10] It appears from what is before the court that the precise nature of the “hole” into which the plaintiff alleges she stepped will not be established with any precision. There nevertheless appears to be a question to be tried on the balance between the risk assumed by the plaintiff and the duty imposed on the defendants to ensure that the premises were reasonably safe. There is simply not enough material presently before the court to reliably make that call. The defendant relies on the fact that the plaintiff had been drinking as if that essentially speaks for itself, but the presence of drinking invitees on the defendant’s premises was, on the material, foreseeable. There is little, if any evidence as to what efforts, if any, were made to render the premises reasonably safe for those who attended the wedding in those circumstances, including, for example, whether paths were designated or lighting was supplied.

[11] The application is accordingly dismissed and, the whole matter will be put on the trial list. The question of severance, if it arises again, should be the subject of an application. Where credibility is a significant issue it should generally be decided on the whole case, not on the fraction of it, unless the test for severance has specifically been met. Otherwise the trier of fact may be deprived of useful information relevant to the over-all assessment of credibility.

Theft/Fire Loss Claims and ICBC "Examinations Under Oath"

Written by admin on May 7, 2011. Posted in BCSC Civil Rule 12, BCSC Civil Rule 22, Uncategorized.

If you purchase Theft of Fire Damage coverage from ICBC and need to take advantage of this insurance can ICBC force you to provide a statement under oath before processing your claim? The answer is yes and reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, dealing with this area of the law.
In this week’s case (Cort v. ICBC) the Plaintiff had fire insurance coverage with ICBC. On September 18, 2010 his vehicle was destroyed by fire. He asked ICBC to pay his loss but ICBC refused to respond until he provided them with an “Examination Under Oath“. He refused to do so and sued ICBC. ICBC brought an application for various pre-trial relief including an order to ‘stay‘ the lawsuit until the Examination Under Oath was provided. Master Keighley granted this order finding that the lawsuit could not move ahead until this ‘investigative’ step took place. In doing so the Court provided the following reasons:

[28] Sections 6 and 8 of the Prescribed Conditions to the Insurance (Vehicle) Regulation B.C. Reg. 156/2010 read as follows:

6(1) If required by the insurer, the insured must, on the occurrence of loss or damage for which coverage is provided by this contract, deliver to the insurer within 90 days after the occurrence of the loss or damage a statutory declaration stating, to the best of the insured’s knowledge and belief, the place, time, cause and amount of the loss or damage, the interest of the insured and of all others in the vehicle, the encumbrances on the vehicle, all other insurance, whether valid or not, covering the vehicle and that the loss or damage did not occur through any wilful act or neglect, procurement, means or connivance of the insured.

(2) An insured who has filed a statutory declaration must

(a) on request of the insurer, submit to examination under oath,

(b) produce for examination, at a reasonable time and place designated by the insurer, all documents in the insured’s possession or control relating to the loss or damage, and

(c) permit copies of the documents to be made by the insurer.

8(1) The insurer must pay the insurance money for which it is liable under this contract within 60 days after the proof of loss or statutory declaration has been received by it or, if an arbitration is conducted under section 177 of the Insurance (Vehicle) Regulation, within 15 days after the award is rendered.

(2) The insured must not bring an action to recover the amount of a claim under this contract unless the requirements of conditions 4, 5 and 6 are complied with and until the amount of the loss has been ascertained by an arbitrator under section 177, by a judgment after trial of the issue or by written agreement between the insurer and the insured.

(3) Every action or proceeding against the insurer in respect of loss or damage for which coverage is provided under this contract must be commenced within 2 years from the occurrence of the loss or damage.

[29] Accordingly, says ICBC, since the insured may not commence an action to recover the amount of his claim until he has, inter alia, submitted to an examination under oath, at the very least he should be enjoined from proceeding with the claim…

[32] ….The purpose of an EUO, on the other hand is investigative. The insured is contractually bound to co-operate with his insurer by submitting to an examination which may assist the insurer in determining its response to the claim. The insured may not, as a matter of contract, seek to attach conditions to his attendance.

[33] In the circumstances the contract claim will be stayed until the plaintiff has complied with the requirements of the Prescribed Conditions. In the event that the parties cannot resolve the issue of compliance by agreement, they will have liberty to apply.

This case is also worth reviewing for the Court’s discussion of transfer of claims to Small Claims Court under section 15 of the Supreme Court Act and further the severance of bad faith claims from breach of contract claims pursuant to Rule 22-5(6) and 12-5(67) of the Supreme Court Rules.

Summary Trials and the Severance of Issues

Written by admin on April 7, 2011. Posted in BCSC Civil Rule 12, BCSC Civil Rule 9, Uncategorized. 58 Comments on Summary Trials and the Severance of Issues

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with an interesting question: is a Court order for severance of issues required prior to a Court adjudicating an issue (as opposed to the entirety of a claim) in a summary trial?
The reason why this is an issue is due to two competing Rules of Court. Rule 9-7(2) permits a party to “apply to the court for judgement…either on an issue or generally“. On the face of it this rule seems to permit a party to apply for only part of a case to be dealt with summarily. However, Rule 12-5(67) requires a Court Order to sever issues in a lawsuit stating that “the court may order that one or more questions of fact or law arising in an action be tried and determined before the others“:.
In this week’s case (Chun v. Smit) the Plaintiff was injured in a motor vehicle collision. He brought a motion for the issue of liability to be addressed on a summary trial. The Defendant opposed arguing that a summary trial was not appropriate. Mr. Justice McEwan agreed and dismissed the application. In doing so the Court provided the following useful reasons finding that an order to sever issues under Rule 12-5(67) is a prerequisite to having only part of a case tried by way of summary trial:

[7] The question is really whether Rule 9-7 merely describes a mode of trial, while the claim or cause of action remains otherwise subject to the rules that govern trial, or whether the trial of an “issue” under Rule 9-7, where that issue is the severance of liability from quantum, somehow bypasses Rule 12-5 (67) and falls to be decided on a lower standard.

[8] In the brief passage excerpted from Bramwell (above), three different approaches are apparent. It seems to me, however, that whether the test for severance, or of a trial of an “issue” is rationalized as within or outside Rule 9-7, it must meet the standard set out in Bramwell. Rule 9-7 is, in itself, a departure from the ordinary mode of hearing a trial, and proceedings within it are contingent upon the court accepting that the compromises inherent in that process will not impair the courts’ ability to do justice. That being so, it would be illogical that collateral to the compromises inherent in proceeding by summary trial, other aspect of the process were similarly downgraded. If a trial of an issue is found to be an appropriate way to proceed, it may be tried under Rule 9-7, if Rule 9-7 itself is properly applicable. Where a party seeks to proceed on only part of a case under Rule 9-7, the first question is whether there should be severance at all, and the second is whether Rule 9-7 is appropriate. The correct approach is set out in Bramwell, which would bind me in any case (see Hansard Spruce Mills Ltd. (Re), [1954] 4 D.L.R. 590 (B.C.S.C.)).

Justice Harris Discourages Deposition Evidence Absent "Pressing Reasons"

Written by admin on February 28, 2011. Posted in BCSC Civil Rule 12, BCSC Civil Rule 7, Uncategorized. 118 Comments on Justice Harris Discourages Deposition Evidence Absent "Pressing Reasons"

Rule 7-8(1) of the BC Supreme Court Rules allows parties to a lawsuit to, by consent, record evidence of witnesses prior to trial by way of Deposition. Deposition evidence can then be admitted at trial as authorized by Rule 12-5(40).
When evidence is taken prior to trial it is accompanied by certain shortcomings as compared to live courtroom testimony. Mr. Justice Harris discussed these at length in an Appendix to reasons for judgement released earlier this month.
In this recent case (Byer v. Mills) the Plaintiff was seriously injured in a motor vehicle collision. In the course of the lawsuit the parties agreed to record much of the evidence by way of pre-trial deposition. Ultimately the Plaintiff’s lawsuit was dismissed. Mr. Justice Harris shared some concerns about the shortcomings that can be created by deposition evidence at trial and suggested that counsel only agree to pre-trial depositions when there are ‘pressing reasons to do so‘. The Court provided the following feedback to BC litigants:

a) The majority of the defence evidence of fact was taken by deposition before trial began. This was done by consent as the Civil Rules permit. I presume it was done to convenience the witnesses, most of whom live in or near Quesnel and to save the expense of bringing witnesses to testify “live” before the court in Vancouver.

b) During the course of one deposition, I expressed some reservations about using depositions in this way. What follows are some reflections triggered by the use of this practice, and are not comments directly arising from the way counsel in the case before me conducted the depositions. They are also not complete, but merely illustrative of the kind of problems that arise by taking evidence by deposition.

c) It is well settled in our trial practice that the basic rule is that witnesses should testify live before the court. This proposition is reflected in Civil Rule12-5 (27) and in the many cases in which our courts have considered the basis on which to exercise their discretion to make an order that evidence be taken by deposition.

d) In this case, the defence evidence was taken before trial and therefore before the plaintiff had led any evidence at all. In my view, there are good reasons why in a conventional trial a plaintiff is required to lead evidence first on matters on which he or she bears the burden of proof. The defence is then required to respond to the plaintiff’s case, including leading evidence on any matters on which it carries the burden. This provides an orderly framework for the receipt of evidence by the court. It helps keep the relevance of evidence in focus.

e) Taking defence evidence first carries with it risks and potential inefficiencies. First, there is the risk that a defendant may not correctly anticipate what the plaintiff’s evidence turns out to be at trial. The defence evidence may not be properly responsive to the plaintiff’s case. Evidence may be taken that is unnecessary. Issues may not be adequately addressed in the defence case, creating the risk that a party may need to apply to have a witness who has been deposed supplement his or her evidence. It seems to me to be generally undesirable to take trial evidence out of the normal order.

f) There are further difficulties inherent in taking evidence by deposition. The evidence is not taken live and its receipt as trial evidence is not controlled by the trial judge as the evidence is being given. Objections may be made, as occurred in this case. Inevitably, the objection is made and left on the record. The witness then provides the evidence to which there is an objection, subject to a later ruling.

g) This seems to me to be unsatisfactory. It is preferable that objections be ruled on before the evidence is given for a number of reasons. First, if the objection is upheld, a witness does not spend time answering improper questions. Where several witnesses are testifying about the same matter, a ruling at the outset will limit the scope of the evidence of all the subsequent witnesses. Secondly, it is not uncommon for counsel to frame questions in an objectionable manner, even though there are ways properly to elicit the evidence counsel is seeking. It is far better for the court to have the opportunity to ensure that questions are properly framed and evidence properly received than to try to “unscramble an omelette” after the fact. This is not just a practical issue. Often the way in which evidence is elicited can affect the weight it is entitled to receive. There is a risk of substantive prejudice to the parties if the trial judge is denied the opportunity at the time it is given to ensure that evidence is properly received.

h) Finally, the trial judge has an important additional role to play in controlling the trial process. It is not uncommon for a trial judge to be called on during cross-examination, either at the request of counsel or on his or her own initiative, to control the conduct of the cross-examination. For example, it may be necessary to decide how much of a prior allegedly inconsistent statement ought properly to be put to a witness. That is a decision that should be made at the time the witness is confronted with the statement. Taking evidence by deposition necessarily deprives the trial judge of an essential judicial function. Doing so is fraught with risks to the trial process and risks substantive prejudice to the parties.

i) I appreciate the Civil Rules permit depositions to be taken by consent. In my view, the purpose of allowing this to occur by consent is to obviate the need for an order where it is clear that the circumstances exist that would lead a court to make an order. Generally, the party applying to take evidence by deposition has a burden to meet to justify departing from the general rule that evidence be given live. I will not rehearse the law on this point. But I do not think the drafters of the Civil Rules intended to encourage a practice that is inconsistent with conventional trial practice.

j) It follows from my comments above that I would discourage counsel from electing to resort to taking depositions by consent unless there are pressing reasons to do so. If there are legitimate concerns about cost and convenience, there are provisions permitting taking evidence by video conference. At least then the evidence is taken live.

BC Rules of Court Update: The Adverse Witness Rule

Written by admin on October 5, 2010. Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.

The Rules of Court permit parties to a lawsuit to force opposing parties to take the stand during the course of a lawsuit. Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this power under the New BC Supreme Court Civil Rules.
In today’s case (Dawson v. Tolko) the Plaintiffs were current and former employees of Tolko Industries. Tolko Industries amended a pension plan it offered it’s employees. During the course of this occurring another Defendant in the lawsuit, Mr. Mercier, assisted and advised Tolko Industries on issues relating to the offer made to the employees to change from a defined benefit pension plan to a defined contribution plan.
The Plaintiff’s sued Tolko and Mercier alleging that they did not act in good faith during this period. Prior to trial the Plaintiffs lawyer examined Mr. Mercier extensively. During the course of the trial the Plaintiffs wished to put Mr. Mercier on the stand.
The Defendant objected arguing that this was not necessary as he would take the stand in the defence and could be cross-examined at that time and further that the Plaintiff could read his discovery evidence in at trial.
Mr. Justice Butler rejected the Defendant’s argument and ordered that he take the stand. In doing so the Court canvassed the power of litigants to put adverse parties on the stand in the BC Supreme Court. In doing so the Court found that authorities developed under the former Rules remain helpful. Specifically Mr. Justice Butler held as follows:

[6] The Rules provide that the plaintiff may call an adverse party as a witness for cross-examination as part of the plaintiff’s case. This may be done either by delivering the notice (as was done in this case), issuing a subpoena, or calling the adverse party as a witness if he or she is in the courtroom.

[7] In my decision in Canadian Bedding Company Ltd. v. Western Sleep Products Ltd., 2008 BCSC 1444, I considered an application to set aside a notice delivered under the provisions in the former Rules in circumstances that were very similar to the circumstances in this case. I dismissed the defendant’s application to set aside the notice. In doing so, I examined the three different ways in which an adverse party could be called as a witness in the plaintiff’s case and the differences in the provisions for setting aside the notice or subpoena. The provisions in the current Rules are, with one exception, the same and so my analysis is relevant to the current Rules…

[16] I agree that the natural unfolding of the narrative can be impacted by use of the adverse party witness rule and that the use of the rule may unnecessarily prolong the trial. However, I do not agree that the adverse party witness rule was intended to be limited to situations where the evidence sought to be elicited cannot be satisfactorily tendered in any other way. The use of an adverse party witness may, in certain circumstances, be an effective way to prove a party’s case. Counsel should not be deprived of that option when the language in the adverse party witness rule does not contain that limitation.

[17] I have arrived at this conclusion on the basis of my analysis of the former Rules set out in Canadian Bedding. In my view, the differences in the discretion given to a trial judge depending on how the adverse party witness is called to be a witness are important and cannot be ignored.

[18] The Rules establish a hierarchy of discretionary considerations depending on how the adverse party witness is compelled to testify. When a notice has been properly served pursuant to Rule 12-5(21), the witness and counsel have ample time to prepare for the cross-examination and design a trial strategy to deal with the fact that the defendant will be an adverse party witness. Accordingly, the court is given a limited jurisdiction to set aside the notice. It is only where the “evidence of the person is unnecessary” that the court can set aside the notice. I cannot read Rule 12-5(23)(b) as equivalent to Rule 12-5(39), which states that a subpoena may be set aside where “compliance with it is unnecessary.” The wording of Rule 12-5(39) must encompass a broader range of considerations including a consideration of the steps already taken in the case and whether compliance with the subpoena is necessary for the proper conduct of the trial.

[19] Further, as I noted in Canadian Bedding, the discretion granted to the court must be exercised with restraint. In De Sousa v. Kuntz (1988), 24 B.C.L.R. (2d) 206 (C.A.), Wallace J.A. cautioned that it was only in a clear case that a judge should exercise his discretion to set aside a subpoena on the ground of necessity. He emphasized, at 214, the need for a judge to be acutely aware that if he sets aside a subpoena:

… he is substituting his view for that of counsel as to the need to subpoena a certain witness and that he will seldom have as complete an appreciation as counsel does of the benefits – both tactical and substantive – that a litigant may derive from calling a certain witness.

That caution applies with equal force in relation to the adverse party witness rules. If plaintiff’s counsel decides to utilize the adverse party witness rule in order to satisfy the onus of proof borne by the plaintiff, the court should be reluctant to interfere.

[20] In arriving at his conclusion in Strother, I also note that Lowry J.A. specifically stated at para. 43 that he intended “no imposition of any procedural limitation.” If I were to accede to Mr. Mercier’s interpretation of the adverse party witness rule, it would add a gloss that does not appear in the current Rules. It would impose a procedural limitation which does not appear in the adverse party witness rule.

[21] Mr. Mercier cannot show that his evidence is “unnecessary”. Mr. Poulus’s undertaking to call him as a witness and the fact of the extensive examination for discovery is not relevant to that consideration. Accordingly, I decline to set aside the notice pursuant to Rule 12-5(23)(b).