Tag: Rule 12-5(22)

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.

BC Rules of Court Update: The Adverse Witness Rule


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).

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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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