Tag: Rule 12

Credibility Cases Not Suitable for Severance of Issues and Summary Trial


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"


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.

More on the Affidavit Evidence Prohibition At TMC's and CPC's


Further to my recent post on this topic, the law regarding the Affidavit Prohibition at Case Planning Conferences and Trial Management Conferences appears to be taking shape.  Useful reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a common sense approach to this prohibition.
In this week’s case (Enns v. Cahan) the Plaintiff sued for damages under the Family Compensation Act.  A trial management conference was held and the Defendant brought an application to strike the Plaintiff’s Jury Notice.  The Defendant did not provide any affidavits in support of his application relying only on the pleadings and an expert report which was intended to be introduced at trial.  The Defendant argued the case was too complex for a jury.
The application was dismissed with Madam Justice Gray finding that the case could appropriately be heard by a Jury.  Prior to making this finding the Court provided the following useful reasons about when it’s appropriate for a contested application to be heard at a TMC given the affidavit evidence prohibition:

[9] Rule 12-2(11) provides that:

(11)  A trial management conference judge must not, at a trial management conference,

(a) hear any application for which affidavit evidence is required, or

(b) make an order for final judgment, except by consent.

[10] Mr. Brun, Q.C., argued on behalf of Mr. Cahan that his application could proceed without affidavit evidence and on the basis of submissions by counsel alone. Mr. Brun provided the Court with a copy of the Bruce-Aldridge report and seeks to rely on that and the statement of claim as the basis for his application. Mr. LeBlanc argued on behalf of Mr. Enns that Mr. Cahan’s application requires evidence and that it is therefore one of the prohibited orders set out in Rule 12-2(11).

[11] The new Rules include Rule 1-3 as follows:

(1)  The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on its merits.

(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.

[12] The new Rules have procedures which enable the court and the parties to design the procedure necessary to resolve a particular issue which is in question. The question of whether an application requires affidavit evidence will not always be determined by what remedy is sought. The question of what is in dispute will play a role, as well. In this case, Mr. Brun’s submissions are based on the Bruce-Aldridge report and the statement of claim. It is not necessary to require the parties to go to the trouble and expense of preparing affidavits when counsel can simply provide the court with a copy of the report in question and the pleadings.

[13] In my view, requiring affidavit evidence would not be consistent with the object of securing the inexpensive determination of every proceeding on its merits. Here, counsel agree that the Bruce-Aldridge report was tendered by Mr. Enns as a report he intends to rely on at trial as an expert report. As I have said, that report, together with the statement of claim, form the basis of Mr. Brun’s submissions. As a result, Mr. Cahan’s application can proceed as an application before the trial management judge.

Jury Notice Struck in Complex "Shaken Baby" Case


Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, striking a Jury Notice in a complex “shaken baby” case.
In this week’s case (Sivertson (Guardian ad litem of) v. Dutrisac) the Plaintiff claimed damages “for a brain injury suffered on June 11, 2001 while in the care of the defendant Dutrisac who was the owner and operator of a licensed daycare… The plaintiffs allege that the defendant Dutrisac was negligent in her care of the infant plaintiff, resulting in his fall to the floor where he struck his head and suffered a brain injury.  They claim that following the initial injury, Dutrisac further exacerbated that injury when she allegedly shook or jostled the infant so as to have him remain conscious.  The plaintiffs’ claim against the CHR is that it was negligent in its ongoing inspections of the daycare facility and in continuing to license that facility notwithstanding a number of complaints made by various parents over the weeks and months preceding the infant plaintiff’s injury.”
The Defendants brought an application pursuant to Rule 12-6(5) to strike the Plaintiff’s Jury Notice.  Madam Justice Boyd agreed that the case was not appropriate for a Jury to preside over and granted the application.  In doing so the Court provided the following reasons:

[16] Having considered the submissions of counsel and having reviewed the many expert reports which have been filed, I find that there are a plethora of elements in this case which raise issues of both complexity and intricacy.  The trial will be long.  It will involve two sets of defendants, each involving different standards of care.  The CHR defendants’ duty of care will be particularly complex to determine, given the statutory scheme and whether or not that scheme negates any private duty of care.

[17] However most complex of all will be the issues concerning the causation of the infant plaintiff’s brain injury, whether there was any pre-existing brain injury, and what damages may be attributed to the pre-existing brain injury, if any.  The determination of these issues will require that the jury consider and weigh the conflicting and highly complex evidence of a number of different medical experts from a number of different specialties.

[18] At the heart of this debate will be the central theme of the “shaken baby syndrome”, since, even on the basis of the plaintiffs’ expert’s amended opinion, the acceleration/deceleration theory of injury is advanced regarding the jostling of the child, following the initial fall.  As Mr. Lindsay has pointed out, the Shaken Baby Syndrome or the acceleration/deceleration mechanism of injury remains one of the most highly debated areas in the field of forensic pathology.  The debate continues to rage in the medical and scientific community concerning these types of injuries in infant children.  In this regard, I take particular note of the comments of Chief Judge Crabtree of the British Columbia Provincial Court in British Columbia (Director of Child, Family and Community Service v. Z.B., 2011 BCPC 0072.

[19] I must note that while I have treated this application to strike the jury notice as a joint defence application, in fact, in my companion ruling I have already dismissed the action against the CHR.  In my view this does not result in any different ruling regarding the striking of the jury notice.

[20] On a consideration of all of these issues, but most particularly the medical and scientific evidence to be weighed, I find it is completely unrealistic to believe that even a well instructed, intelligent jury would be able to cope with the determination of all the issues here.  Thus I exercise my discretion under the rule and order that the jury notice be struck in this case.

New Rules Caselaw Update: More on Contested Applications at TMC's and CPC's


Late last year reasons for judgment were released by the BC Supreme Court finding that Trial Management Conferences and Case Planning Conferences “are not generally the forum to determine contested applications.” . Reasons for judgement were released this week by Mr. Justice Smith taking a less restrictive view of this issue.
In today’s case (Jurczak v. Mauro) the Plaintiff was injured in a motor vehicle collision.  As trial neared the Plaintiff brought an application for an adjournment and this was granted in order to give the Plaintiff time to gather appropriate medico-legal evidence.  The Court was specifically asked whether it was permissible for contested applications to be heard at TMC’s.  Mr. Justice Smith held that such practice was permitted under the Rules.  The Court provided the following reasons:

[1] At a Trial Management Conference (TMC) on March 31, 2011, I made an order adjourning the trial in this matter, which had been set for May, 2, 2010.  I indicated that I would provide written reasons because the application raised a procedural question about the circumstances under which a judge at a TMC may hear and rule upon a contested adjournment application.

[2] The TMC was created by the new Supreme Court Civil Rules, B.C. Reg. 168/2009 that came into effect on July 1, 2010.  Rule 12-2 (9) sets out a broad range of orders that can be made by the presiding judge at a TMC “whether or not on the application of a party.”  These include, at subparagraph (l), an order adjourning the trial.  However, Rule 12-2 (11) prohibits a TMC judge from hearing an application for which affidavit evidence is required…

[7] I do not understand Vernon to be suggesting that a judge at a TMC can never order an adjournment if one party objects.  No such restriction appears in Rule 12-2.  The Rule prohibits hearing applications that require affidavit evidence.  It is for the judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.

[8] The orders permitted by Rule 12-2 (9) are, broadly speaking, procedural in that they deal with the conduct of the trial, including how certain evidence is to be presented, the length of the trial and, in subparagraph (q), “any other matter that may assist in making the trial more efficient.”

[9] Rule 12-2 (3) requires the parties to file trial briefs in Form 41 identifying the issues in dispute (which, by that stage, may not be all of the issues raised in the pleadings), listing the witnesses, including experts, to be called and estimating the time necessary for the evidence of each witness.  The trial brief is an unsworn statement of counsel or the self-represented party.  The Rule clearly contemplates that the judge will make orders based on the information contained in the trial briefs, as supplemented by what is said at the TMC.  That is the only basis on which the orders permitted by the Rule could be made.

[10] In some cases where an adjournment, or any other order is sought, a judge may decide that supporting information is not adequate.  That was the situation in Vernon, where Goepel J. was presented with an affidavit of the plaintiff setting out the prejudice that would flow from an adjournment.  That evidence had to be weighed against any evidence of prejudice to the defendant if the adjournment was not granted.  Once the plaintiff’s affidavit was found to be relevant, evidence in proper form was required from the defendant and counsel’s statements, standing alone, were not acceptable.

[11] However, there are situations where the need for an adjournment can be clearly assessed on the basis of information provided at the TMC and affidavit evidence would be of no assistance.  For example, a judge may be able to determine simply from the trial briefs that the trial cannot possibly be completed in anything close to the estimated time, or that the number of pre-trial matters still to be dealt with shows that the case is not ready for trial.  If the judge could not order an adjournment in those circumstances, a large part of Rule 12-2’s purpose would be defeated….

[18] In summary, the fact that the adjournment application was contested would not, in itself, have prevented me from hearing and deciding it at the TMC.  In the circumstances, affidavit evidence was not necessary. I had jurisdiction to consider the adjournment application on the basis of information in the trial briefs and the statements of counsel at the TMC and I would have made the same decision had the matter proceeded on that basis.

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.)).

More on ICBC Claim Adjournments: Discretion and Court Ordered Conditions


Rule 12-1(9) gives the BC Supreme Court the discretion to adjourn trials.  When asked for an adjournment the Court must balance the interests of the parties.   When adjourning a trial the Court can attach a variety of conditions which can even include damage advancements in personal injury lawsuits.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this area of law.
In today’s case (Kailay v. ICBC) the Plaintiff was injured in two separate motor vehicle collisions.   The matter was set for trial previously but was adjourned following an application by ICBC.
The Plaintiff became pregnant shortly before the rescheduled trial and this apparently aggravated some of her accident related stress and psychological symptoms.  ICBC argued a further adjournment was necessary as a result of this development.  Master Baker agreed and granted ICBC a second adjournment, however, the Court attached several conditions to this order.  In doing so Master Baker discussed the Court’s ability to attach terms to adjournments and provided the following reasons:
[12] Taking these various positions, I am satisfied of the following. First, the court’s jurisdiction to make an order for conditions of an adjournment that include advances, whether to meet specific costs and expenses, or as simple advances on likely general damages cannot be seriously disputed. ..
13]         I do not accept that liability must be absolutely established before an advance can be ordered. The real issue, in such a case, is: in the event the plaintiff is unsuccessful, can the advance be recovered? I see no reason why that would not be the case here, particularly assuming that any advance would be accompanied by an undertaking from Ms. Kailay in that respect…

[19]         As a consequence of the above, I direct that the conditions of the adjournment will be:

1.       The defence will fund up to 30 further counselling sessions at up to $200.00 per session;

2.       Ms. Kailay will receive $20,000.00 toward her general damages claim;

3.       The defence will advance $10,000.00 toward Ms. Kailay’s costs incurred to date, including, of course, her experts’ fees;

4.       Ms. Kailay will give her undertaking that, in the event her claim fails at trial or that advances to date (including the above) exceed the damages awarded by the court, she will repay the advances as required.

These are the conditions of the adjournment. If, for any reason, the defence does not acknowledge and accept them by March 7 the trial will continue on April 4 as currently scheduled.

[20]         Costs of this application will be costs in the cause.

Injury Trial Adjourned Due to Delayed Medico-Legal Report


Reasons for judgement were recently published by the BC Supreme Court addressing the adjournment of a personal injury trial where the Plaintiff’s independently retained physician failed to author a medico-legal report in a timely fashion.
In the recent case (Barlow v. Smoch) the Plaintiff was injured in a 2006 collision.  He was the passenger in a vehicle which collided with a dump truck-trailer.  He apparently suffered serious injuries including a “severe traumatic brain injury with left sided hemiparesis“.
In the course of the lawsuit the Plaintiff hired a variety of independent experts to provide medico-legal opinion evidence at trial.  One of the experts was a physiatrist who assessed the Plaintiff.  The Plaintiff requested a report however no report was provided within the timelines required by the Rules of Court.  The Plaintiff’s other experts required the physiatrist’s report in order to finalize their opinions.  Because the physiatrist did not author the report in a timely fashion the Plaintiff was unable to adequately prepare his case for trial.
The Plaintiff brought an adjournment application.  The Defendant opposed, arguing an adjournment would be prejudicial.  Master Caldwell ultimately granted the adjournment finding that neither party were to blame for the need of the adjournment and that keeping the current trial date would result in prejudice to the Plaintiff.  In granting the adjournment the Court had the following critical comments for the Plaintiff’s expert:

[20]         The determination I have to make now is whether the plaintiff would be so prejudiced by having this matter proceed to trial, in light of all of the circumstances, or whether the defendant would be prejudiced to the extent that there would be some waning of the memory of the defendant Hilborn.

[21]         Remembering of course that the plaintiff is a severely brain?injured individual with hemiparesis, it would behoove me ultimately to weigh the prejudice in favour of the plaintiff and make a determination that the trial ought to be adjourned, not through any fault of counsel or the parties, but more I think because there is an unexplained failure to provide a report following a medical assessment by a medical professional.

[22]         When I say unexplained, I do not say that meaning plaintiff’s counsel has not explained it; I mean (the physiatrist) has not explained her lack of attention to requests for the report following her assessment of the plaintiff on the 31st of May last, which I think is unacceptable.

[23]         I say parenthetically that this may be a matter that counsel and the parties should be taking up with the College of Physicians and Surgeons, because in this case it is, without a doubt, in my view, (the physiatrist’s) lack of production of the document requested that has ultimately resulted in the adjournment of the trial.

[24]         As for costs, there is not a lot of blameworthy conduct here over which costs could be assessed.  I think every party has had a legitimate rationale for having the positions they have taken with respect to the particular application, which I find to be somewhat unique in the circumstances.  So I will say that I think each party should bear its own costs of this application.

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.

New Rules of Court Update: Contested Applications At CPC's and TMC's


(Note: this area of law is still developing, for a further case addressing this issue click here)
Two of the biggest changes under the New Supreme Court Rules are the introduction of Case Planning Conferences and mandatory Trial Management Conferences (CPC’s and TMC’s).
The New Rules give the Court significant powers to make various orders with respect to the conduct of lawsuits at these hearings.  Interesting reasons were recently brought to my attention addressing the limit of the Court to address contested matters at CPC’s and TMC’s.
In the recent case (Vernon v. British Columbia (Liquor Distribution Branch)) the Plaintiff sued the Defendant for wrongful dismissal.  As the lawsuit progressed the parties attended a Trial Management Conference.  At the TMC the Defendant asked for various orders including an adjournment of the upcoming trial and a partial publication ban of the trial.  These applicaitons were contested by the Plaintiff.  Mr. Justice Goepel dismissed the applications finding that TMC’s and CPC’s were inappropriate forums for contested applications.  The Court provided the following reasons:

[21]        The issue in this case is whether counsel’s statements provide a sufficient evidentiary foundation for the orders that the defendant seeks. The applications for an adjournment and a publication ban both require the exercise of judicial discretion to consider competing interests. In the case of the adjournment, the contest is between the defendant’s need for additional time to prepare its case and the potential prejudice to the plaintiff if the case is adjourned. With regard to the publication ban, the court must weigh the salutary effect

[22]        The adjournment and publication ban applications both require a proper evidentiary foundation. Statements of counsel alone are not sufficient. To paraphrase Lambert J.A. in Nichols, where statements of counsel stand alone, it will be a rare case that such statements will be sufficient to justify a finding of fact that would permit the exercise of judicial discretion. This is not such a case.

[23]        While CPCs and TMCs have a role to play in the orderly progress of litigation, they are not generally the forum to determine contested applications. Such applications will usually require affidavit evidence and pursuant to the provisions of Rule 12-2(11) and 5-3(2) applications requiring affidavit evidence cannot to be heard at such conferences. In this case affidavit evidence is necessary to determine the defendant’s applications for an adjournment and a publication ban. Those applications cannot be heard at a TMC.

[24]        This is not to say that a judge cannot make orders at a CPC or a TMC. Clearly, a judge can. Many of the orders contemplated at such a conference will not require applications or affidavit evidence. The Rules allow a judge to make an order absent an application. Many of the orders suggested in the respective rules are procedural in nature and more in the nature of directions. Such orders can be based on the representations of counsel. An example is the present application concerning the order of proceedings at trial.

Contact

If you would like further information or require assistance, please get in touch.

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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