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Tag: Rule 12-5(46)

Corporate Plaintiff Not Allowed To Read In Discovery Evidence of Former Employee

Written by admin on . Posted in BCSC Civil Rule 12. 117 Comments on Corporate Plaintiff Not Allowed To Read In Discovery Evidence of Former Employee

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing limits on the use of discovery evidence at trial.
In today’s case (No Limits Sportswear Inc v. 0912139 BC Ltd) the Plaintiff sought to read in evidence at trial of their former employee who was questioned at discovery as a representative of the Plaintiff.  The Plaintiff argued that Rule 12-5(47) allowed such a result.  Madam Justice Griffin disagreed and in preventing the Plaintiff from using the discovery evidence of their former employee the Court noted as follows:

[14]         The interpretation of the Rules suggested by the plaintiffs regarding the use at trial of the examination for discovery of a former employee is contrary to the underlying purposes of the procedure.

[15]         The utility of an examination for discovery would be undermined if self-serving parts of evidence of the former employee given on discovery could be read-in at trial by the party who used to employ the witness. Such a result would seriously inhibit the scope of questioning by the examining party, limiting the fact-finding nature of the discovery and its usefulness as a tool to avoid surprise at trial and to encourage settlement.

[16]         The former employer does not need to use the examination for discovery transcript in order to call helpful evidence from its former employee at trial. The former employer always has a choice of calling him as a witness at trial.

[17]         Contrary to the submissions of the plaintiffs, the fact that subrules 12-5(46), (47) and (48) are separate subrules does not lead to the conclusion that each subrule stands alone and that any party can tender the examination for discovery evidence of a former employee.

[18]         Rule 12-5(46) states that evidence given on examination for discovery may be tendered by “any party adverse in interest”. Rule 12-5(47) does not say who it may be tendered by, but instead, deals with the requirement of giving notice of the intention to tender the evidence if it is from a former employee. Subrule (47) does not say the evidence can be tendered by any party and does not supersede the requirement in R. 12-5(46) that it be tendered by a party adverse in interest.

[19]         Also relevant is the restriction on the use of the evidence as set out in R. 12‑5(46)(b). This subrule provides that the evidence is admissible only “against” the adverse party whose status as a party entitled the examining party to conduct the examination. In other words, the evidence of the former employee, if read-in at trial, is only admissible against his former employer, the plaintiff company. It cannot be read-in by one group of defendants as evidence to be used against the other defendant. The plaintiffs’ submission that the plaintiffs should be entitled to read-in portions of the evidence to be used “at large” in the trial would be contrary to these restrictions.

[20]         The purposes of subrules 12-5(47) and (48) are to deal with the situation where the former employee who was examined for discovery is hostile to his former employer, and gave evidence on discovery which the former employer does not accept and wishes to challenge. Subrule (47) requires that the party tendering the former employee’s evidence, which again by subrule (46) must be a party adverse in interest to the party who formerly employed the witness, must give 14 days’ notice before trial of the intention to tender the evidence. This then gives the party who formerly employed the witness, and any other party, the opportunity to require the witness to be produced for cross-examination at trial pursuant to subrule (48).

[21]         To deal with the possibility that the former employee may have loyalties to none of the parties at trial, subrule (48) allows all parties to cross-examine the witness if his presence is required at trial.

[22]         I find support in this interpretation in the commentary to R. 12-5(47) found in McLachlin & Taylor, British Columbia Practice, vol. 2, 3d ed. (Markham, Ont: LexisNexis, 2006) at 12-51 as follows:

Under SCR 1961, M.R. 370rr, only the examination of a person who was an officer or servant of the corporation at the time of trial could be used as evidence. This was subject to SCR 1961, M.R. 370s which effectively excluded the use of discovery of a former officer or servant who had been dismissed from employment except where such dismissal occurred after service of the appointment for examination for discovery, in which case his examination could be used with leave of the court: Seymour v. Fleetwood Logging Co., [1963] B.C.J. No. 64, 45 W.W.R. 511 (S.C.). The apparent reason for these rules was the prospect of the unfair use against a corporation of the discovery of a person no longer in its employ and possibly hostile to it.

These restrictions on the use of examination for discovery of former director, officer, employee, agent or external auditor of a party was abolished by the enactment of SCR 1976, Rule 40(24) (which became SCR 1990, Rule 40(27)): Robitaille v. Vancouver Hockey Club Ltd. (No. 2), [1979] B.C.J. No. 526, 13 B.C.L.R. 309 (S.C.), affd [1981] B.C.J. No. 555, 30 B.C.L.R. 286 (C.A.). Because a party has no choice in the selection of who is examined on his behalf under Rule 7-2(5), it is arguably unfair to burden him with such a person’s answers: see Rule 7-2(5) and comments thereunder.

Accordingly, SCR 1976, Rule 40(27) (which became SCR 1990, Rule 40(24)) was amended in 1985 to provide that the examination for discovery of a former director, officer or servant may be given at trial only if notice of the intention to do so is delivered to all parties at least 14 days before the trial. Any party may then require that the person examined attend at the trial and, if any part of the examination for discovery is given in evidence, all parties may then cross-examine the former director, officer or servant.

[23]         I conclude that the plaintiffs are not entitled to read-in passages of the examination for discovery of its former employee, Mr. Darren Hawrish.

More On Discovery Evidence at Trial and The Adverse Party Limitation

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure. 102 Comments on More On Discovery Evidence at Trial and The Adverse Party Limitation

As previously discussed, one limitation when using examination for discovery evidence at trial is that the evidence is only admissible against the party that was examined.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this limitation finding it is equally applicable during a summary trial.
In this week’s case (Liversidge v. Wang) the Plaintiff sued the Defendant’s for damages.  The Defendants brought Third Party proceedings but the Plaintiff never extended the claim against the Third Party.  In the course of the lawsuit the Plaintiff examined the Third Party for discovery and then set down a summary trial intending to rely on portions of the examination transcripts as against the Defendant.  In disallowing this Mr. Justice Burnyeat provided the following reasons:
12] Rule 12-5(46) (formerly Rule 40(27) states that evidence given at the examination for discovery by a party or a person under Rule 7-2(5) to (10) may be tendered as evidence by a party adverse in interest, but is only admissible against the party examined. This concept was explained by Arnold-Bailey J. in Biehl v. Strang, (2011) 21 B.L.R. (4th) 1 (B.C.S.C). as follows:
I note in Bower v. Cominco Ltd. (1998), 53 B.C.L.R. (3d) 322, 19 C.P.C. (4th) 22 (B.C. S.C.), it was held that the predecessor rule, R. 40(27) of the Rules of Court, B.C. Reg. 221/90 [Predecessor Rules], was enacted in response to Robinson v. Dick (1986), 6 B.C.L.R. (2d) 330 (B.C. S.C.), which permitted the admission of discovery evidence against co-defendants. In Beazley v. Suzuki Motor Corp., 2009 BCSC 1575 (B.C. S.C.) [Beazley] at para. 26, it was held that R. 40(27) only permitted discovery evidence to be admitted against the adverse party examined. (at para. 77)
[13] The decisions outlined in Biehl, supra, and Rule 12-5(46) are clear. The evidence given on an examination for discovery is admissible, but it is only admissible against the adverse party who was examined. Rule 12-5(46) applies equally to a Trial and a Summary Trial.
[14] Under Rule 7-2(1), “a party to an action must make himself or herself available for examination for discovery by parties of record to the action… who are adverse in interest to the parties subject to the examination”. The Plaintiffs did not commence an action against the Third Party so as to make the interest the Third Party adverse to the interest of the Plaintiffs. Here, the Plaintiffs did not have the right to examine the Third Party for discovery. Despite the fact the Third Party consented to being discovered by the Plaintiffs, that consent does not then make the evidence that arises from that discovery available for use by the Plaintiffs against the Defendants.
[15] The evidence provided at the Examination for Discovery of a representative of the Third Party cannot be used on this Summary Trial Application to assist the Plaintiffs in advancing the claim that they make against the Defendants. 

Examination For Discovery Evidence and Proper Procedure at Summary Trials

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 9, ICBC Liability (fault) Cases.

Update July 19, 2013 – the below decision was upheld in reasons for judgement released today by the BC Court of Appeal
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Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing the introduction of examination for discovery evidence at a summary trial.
In the recent case (Mawani v. Pitcairn) the Plaintiff was injured in a pedestrian/vehicle collision.  Fault was disputed and following a summary trial Mr. Justice Kelleher found both parties equally to blame.
In the course of the summary trial the Plaintiff tendered an affidavit which attached the transcript from the Defendant’s examination for discovery as an exhibit.   The Plaintiff’s application response clearly indicated that the Plaintiff was only relying on specific questions and answers from the examination.  Despite this the Defendant argued that the entire transcript was put in evidence by the Plaintiff therefore the Plaintiff was bound by the unhelpful answers.
Mr. Justice Kelleher rejected this argument finding that in circumstances where the Plaintiff clearly identifies the specific questions he is relying on such a harsh result is not justified.  The Court provided the following reasons:

[23]At the hearing before me, the defendant argued that the entire examination for discovery of the defendant is before me.  That is because of para. 46 of the earlier ruling:

[46]      … Neither the deposition evidence nor Mr. Pitcairn’s examination for discovery are tendered as part of Mr. Pitcairn’s case.  If they are before me at all, they are before me as part of Mr. Mawani’s case.  His evidence, as matters currently stand, includes both the entirety of the examination for discovery evidence, and an affidavit from Ms. Forrest disclosing those portions of the examination for discovery he intends to rely on.  It also includes the entirety of the deposition evidence, but as I already noted, the rules do not provide for the admissibility of the deposition on summary trial unless arguably the court makes an order for its admission.  As I have also noted, there has been no application yet made by any party for that deposition evidence to be received in whole or in part.

[24]I disagree with the defendant that the entire examination for discovery is before me.  Mr. Justice Harris went on to direct, at para. 69, that plaintiff’s counsel file an application response which sets out the material on which he relies as part of the evidence in his case.  Mr. Gourlay did that on February 29, 2012.

[25]Mr. Arvisais argues that the entire transcript is in evidence.  In a conventional trial, the transcript would not be an exhibit.

[26]The application response filed February 29, 2012, makes it clear that the plaintiff is relying on certain questions and answers only.  Despite Mr. Justice Harris’s statement at para. 46 of his reasons, which were published before the application response was filed, the plaintiff does now make clear what questions and answers are relied upon.  The attachment of the entire transcript of the examination for discovery is consistent with the “proper procedure” outlined by Burnyeat J. in Newton v. Newton, 2002 BCSC 14.

Examination for Discovery Caselaw Update: Scope of Proper Questions

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 15, BCSC Civil Rule 7, Uncategorized.


Two useful, albeit unreported, cases were recently provided to me dealing with objections to two fairly common examination for discovery questions and dealing with their propriety.
In the first case (Blackley v. Newland) the Plaintiff was injured in two motor vehicle collisions.  In the course of examining the Defendant for discovery, the Plaintiff’s lawyer asked a series of “do you have any facts known or knowable to you” questions addressing the specific allegations set out in the Pleadings such as:

  • do you have any facts known or knowable to you that relate in any way to whatever injuries Mr. Blackley received in this collision?
  • do you have any facts known or knowable to you that relate in any way to what pain or suffering Mr. Blackley has had because of this collision?

At trial, the Plaintiff proposed to read this series of questions and the answers that followed to the Jury.  Mr. Justice Williams held that while the exchange should not go to the jury as its prejudicial effect outweighed its probative value, the series of questions was entirely appropriate in the context of an examination for discovery.  Mr. Justice Williams provided the following comments:
[10]  Speaking generally, in this case, I do not find that the questions asked at the examination for discovery are improper.  They can be said to have been substantially informed by the statement of defence that was filed by the defendant.  As is usual, that statement of defence is replete with denials and positings of other alternative propositions.
[11]  The examination for discovery conducted by plaintiff’s counsel was obviously shaped in part as a response to the pleadings of the defendant and was an appropriate use of the examination process, specifically to discovery the defendant’s case.
In the second decision (Evans v. Parsons) the Defendant put a medico-legal report to the Plaintiff and asked the broad (and arguably compound) question “Okay.  Was there — the facts in Dr. Aiken’s report, was there anything that struck you as incorrect?“.  The Plaintiff’s lawyer objected to the question resulting in a chambers application.  The Defendant argued the question was fair and further that the limited two hour discovery in Rule 15 matters allowed this type of a short cut question.
Master Caldwell disagreed finding the question was too broad and vague.  In doing so the Court provided the following reasons:
All right.  Thank you.  Applications to have a subsequent examination for discovery done specifically to address what I do find as an extremely general and vague question which was asked and objected to at the first discovery.  That comment probably leads one to surmise the application will be dismissed, at it will.  There was an opportunity to specify what facts were being referred to, and counsel refused to further qualify.  There’s a reason for short discoveries in rule 15-1 cases.  Two hours were granted.  If this was an important question, it could have been addressed earlier in the discovery.  I don’t, in the circumstances of the context of the question, believe it to have been a fair question to the plaintiff.  It was far too general, and, as I say, defence counsel refused the opportunity to further qualify or narrow it.  I’m not going to force the Plaintiff to answer such a general question.  Application is dismissed.  Costs to the Plaintiff.
To my knowledge these judgements are not yet publicly available.  As always, I’m happy to provide a copy to anyone who contacts me and requests copies.

Discovery Evidence and the Principled Exception to the Hearsay Rule

Written by admin on . 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.

Examination For Discovery Transcripts and the Adverse Party Limitation

Written by admin on . 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.