Tag: Rule 12

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.

Uncertain Prognosis Results in Injury Trial Adjournment


As previously discussed, it is risky to settle an ICBC claim prior to knowing the long-term prognosis of your injuries.  Without a prognosis it is difficult to value a case and therfore difficult to gauge a fair settlement amount.
The same caution holds true for taking a case to trial.  Absent recovery or a meaningful prognosis it will be difficult for a judge or jury to properly value the claim.  If a case is set for trial but the prognosis is unknown an adjournment can often be obtained pursuant to Rule 12-1(9).  This was demonstrated in short but useful reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Cochrane v. Heir) the Plaintiff was involved in a 2006 collision.  She was scheduled to undergo surgery in February, 2011 and her lawsuit was set for trial shortly thereafter.  The Plaintiff was concerned that her prognosis would not be known at the time of trial and applied to adjourn.  The Defendant opposed arguing that the upcoming surgery was not related to the collision and the adjournment was not necessary.
Mr. Justice Harris concluded that ultimately it would be for the jury to decide whether the surgery was related to the crash, however, since it may be related an adjournment was in the interests of justice.  The Court provided the following reasons:

[3] There is some medical evidence before the court to the effect that the plaintiff’s condition, prognosis and ability to return to work cannot fairly be assessed until after the surgery and after sufficient time has been allowed for rehabilitation.

[4] Counsel for the defendant opposes the adjournment because this is, he submits, a unique case. In a nutshell, he says that the delays and behaviour of the plaintiff in presenting the case are characteristic of her conduct in other matters she has been involved in. In effect, he submits that I should discount the evidence in support of the adjournment. In particular, I should be sceptical of the suggestion of any causal link between the accident and the condition that has led to the proposed surgery, as well as the need or the surgery itself. All an adjournment will do is expand the trial and encourage further delay and obstruction in bringing this matter to trial.

[5] Since I have decided that the interests of justice require an adjournment and since I am the trial judge, albeit with a jury, I have concluded that it would be unwise to comment directly on the evidence referred to by the parties in support of their positions. The issue of the causal connection between the accident, the plaintiff’s current condition and her alleged inability to work, are the primary matters that will be before the court for adjudication. Not to grant an adjournment would work relatively greater prejudice to the plaintiff than to the defendants by constraining her opportunity fully to present her case whatever its merits at trial.

Late Examinations for Discovery and the New BC Supreme Court Rules


Reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, discussing the right to conduct an examination for discovery in the two weeks proceeding trial under the New Civil Rules.
In today’s case (Lewis v. Lewis) the Plaintiff sued for damages as a result of injuries sustained in a motor vehicle collision.  ICBC was a statutory third party in the lawsuit and failed to exercise their right to examine the Plaintiff for discovery in a timely fashion.  ICBC served the Plaintiff with an appointment to attend a discovery 10 days before trial.  The Plaintiff objected arguing, amongst other things, that discoveries are not permitted within the two weeks prior to trial.  ICBC applied for an order compelling the Plaintiff to attend.
In support of their application ICBC argued that the prohibition preventing discoveries in the two weeks preceding trial no longer exists in the new BC Supreme Court Civil Rules.   Mr. Justice Harvey, while not directly addressing this issue, dismissed ICBC’s motion and in doing so made it clear that the rules of Court operate so as to make it difficult for a party to be permitted to conduct a late discovery.  Mr. Justice Harvey provided the following reasons:
[7]  In response to (ICBC’s argument) Mr. Parsons, on behalf of the plaintiff, says that a clear reading of Rule 12-4(3) makes clear that the new rules still contemplate a prohibition against any step, including an examination for discovery, within the period prescribed in Rule 12-4(2).
[8] Rule 12-4(2) reads
A trial certificate must be filed at least 14 days before but not more than 28 days before the scheduled trial date.
[9] I am not persuaded in these circumstances I need to decide that very interesting issue, because I have also been referred to Rule 12-4(6) which says that:
A party who fails to file a trial certificate under subrule (1) is not, without leave of the court, entitled to make further applications.
[10]  The third party has not filed a trial certificate nor could they have given the requirement to have conpleted examinations for discovery as part of the requirement of “readiness”.  Now, 10 days before trial, it is too late to do so.
[11]  Counsel for the third party see this as an excuse allowing them to, at this late date, seek the Court’s leave for the application to compel the plaintiff’s attendance at the proposed discovery.
[12]  That, with respect, is disingenuous.  It has been open to the third party to conduct its discovery since the time it became a party.  That was in October of 2008.
[13]  Instead, the third party has chosen to rely on the defendant to take the lead in this litigation…
[14]  The third party has, at the last moment, unilaterally set down an examination for discovery over the objections of counsel for the plaintiff as to timing.  Counsel is busy with trial preparation for a 15 day jury trial.
[15]  The third party failed to provide conduct money and failed to file a trial certificate in accordance with the rules…
[16]  Contrary to the Rules, leave was not sought to bring the application when short leave was sought before the Master who heard the application.  The application for short leave was brought without notice and counsel for the plaintiff was unable to draw to the Court’s attention the failure of the third party to (1) require leave for their application and (2) failure to provide conduct money to the plaintiff.
[17]  In those circumstances, I am not prepared to gran the third party the leave required to bring this motion.

The BC Supreme Court and Adjournments of Lengthy Trials: The "20-Plus" Program

I’ve previously written about adjournment applications in the BC Supreme Court and that Judges hearing such applications must consider a “balancing (of) the interests of the parties” . Reasons for judgement were released this week by the BC Supreme Court indicating that, at least with lengthy trials, a third factor is in play; specifically the “public interest” must be considered.
In this week’s case (Jones v. Donaghey) the Plaintiff sued for damages claiming he was seriously brain damaged when one of the Defendant’s assaulted him.   The Plaintiff was a newborn at the time of the alleged assault and would be four years old at the time of the proposed trial.
The defendants sought an adjournment of the trial arguing that further time was needed in order to obtain proper medical evidence.  Ultimately Mr. Justice Macaulay disagreed and refused the adjournment application.  Prior to doing so, however, the Court indicated that the interests of not only the parties must be considered in adjournment applications of lengthy trials, but also the public interest.  Mr. Justice Macaulay provided the following useful reasons:

[3] Although I address the balancing of the interests of the parties separately below, the public interest is also impacted by the scheduling, and any potential rescheduling of lengthy trials. Considerable public and judicial resources are tied up in the intensive pre-trial management and conduct of trials under what is colloquially known as the “20-plus” program. The court instituted the program some time ago to assist in the management and scheduling of complex civil cases.

[4] Generally, in my view, every effort should be made to avoid the adjournment of trials once set under the program, as litigants in other cases have had to forgo the opportunity to set down their applications or trials for hearing, because either or both the trial management judge’s rota time and court time have been reserved for a 20?plus case.

[5] In more general terms, perhaps, Levine J., as she then was, referred to the need to consider such broader interests of justice when deciding an adjournment application respecting a long trial in Strata Plan VR No. 2000 v. Shaw, at para. 26. Justice Dorgan referred to the above with apparent approval in denying a defence application for an adjournment in J.S. (Guardian ad litem of) v. D.S., at para 17.

More on ICBC Injury Claims, Trials and Adjournments


As I’ve previously discussed, if you’re not prepared to proceed to trial and ICBC opposes an adjournment it’s necessary to apply for a Court order under Rule 12-1(9) of the BC Supreme Court Civil Rules.  Reasons for judgment were released earlier this month by the BC Supreme Court, Kamloops Registry, dealing with such an application.
In today’s case (Allan v. Houston) the Plaintiff was involved in a 2007 motor vehicle collision.  His injuries apparently included a fracture at the L4 level of his spine and a traumatic brain injury.  His case was set for trial in December 2010.  His treating specialists were apparently unable to “complete assessments of the plaintiff such that a court would be provided with an opinion with respect to the injuries sustained and the prognosis that the plaintiff faces“.  In addition to this, the Plaintiff switched lawyers shortly before the scheduled trial.  The new lawyer was unavailable for the previously scheduled trial.  He sought an adjournment but ICBC refused.  On application the BC Supreme Court ordered that the trial be adjourned.  Mr. Justice Dley provided the following reasons:
[7]  The defendant resists the application for an adjournment on the basis that this matter has been set for trial for some time, that the incident occurred almost three years ago, and, as a result of the heavily contested liability issues, that memories may fade as time continues on.
[8]  Counsel for the plaintiff emphasizes two factors:
that there has been a change of counsel, and that the plaintiff’s new counsel would be unavailable for trial; and
that there is the practical aspect of securing further medical information to ensure that the court is in a position to properly assess the damages, if in fact liability has been proven.
[9]  There is also a third aspect that needs to be considered, and that is the issue of the second motor vehicle accident.  The injuries sustained, it is alleged, in the second accident aggravated those in the first.  In order to ensure that justice can be done for all parties it would be beneficial to have the same trier of fact dealing with both accidents at the same time, as it is anticipated and suggested by counsel for the plaintiff.
[10]  In order for there to be a fair trial, the only rational outcome of this application is to grant the adjournment:  first, to ensure that plaintiff’s counsel is available; second, to ensure that the court has the benefit of the necessary medical information; and thirdly, to ensure that all efficiencies are taken into account to have both accidents dealt with at the same time.
The Court went on to award the Plaintiff costs.  In doing so Mr. Justice Dley reminded defence counsel that “this was an application that should have been given far more serious consideration than what it was by the defence.  There are certain courtesies that should be given during the course of any litigation: one is the availability of counsel and two is the practical aspect of proceeding to trial with all of the necessary information“.

More Confusion Clarified: Trial Notices Under Former Rules Remain Valid Under New Rules


One of the changes under the New BC Supreme Court Civil Rules relates to setting a matter down for trial.  Under the former rules a Notice of Trial was to be delivered “by a plaintiff after the time has expired for the delivery of a statement of defence or by any party after the close of pleadings“.  Under the new Rule 12-1(2) any party may deliver a Notice of Trial at any time after the commencement of a proceeding.
There has been some debate whether Notices of Trial filed under the former rules remained valid under the new rules or whether parties need to file a new Notice of Trial in these circumstances.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with this procedural issue ruling that a new Notice of Trial is not necessary in circumstances where one was filed under the former rules.
In this week’s case (Sim v. Learmouth) the Plaintiff was injured in a motor vehicle accident.  The lawsuit was started under the former rules.  ICBC, as statutory third party, filed a Notice of Trial and Jury Notice in May, 2009.  The Plaintiff did not file their own jury notice in the time lines required under the former rules.  When the New Rules came into force the Plaintiff served a new Notice of Trial and Jury Notice.  The Plaintiff argued that Rule 12-1(6) requires party’s to file a new Notice of Trial.  ICBC disagreed and argued that the Plaintiff’s jury notice was invalid.
Master Keighley agreed with ICBC and struck the Plaintiff’s Jury Notice.  In doing so the Court explained that party’s do not need to file a Notice of Trial under the New Rules if one was filed under the former rules.  The Court provided the following useful reasons:

[17]         It only remains to be considered whether the transitional provision is effective to allow delivery of a further Notice of Trial and a re-setting of the clock with regards to the filing and serving of a Jury Notice.

[18]         In my view, it is not, for the following reasons:

(a)      The applicant’s delivery of their Notice of Trial and Jury Notice were “steps taken before July 1, 2010”;

(b)      Any right or obligation arising out of delivery of the Notice of Trial had effect on the day of delivery, namely the trial date was secured, subject to an adjournment by agreement or order. It had no other effect thereafter;

(c)      Delivery of the Jury Notice was effective to notify the parties of records as to the applicant’s intention to have a trial by judge and jury on the date of delivery. It had no other effect thereafter, although a jury trial would only be secured by a further step, the payment of jury fees prior to trial. The Notice itself, however, was fully effective on delivery.

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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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