Tag: Rule 7-5(1)

No Pre Trial Examination Ordered For Witness Willing to Talk Through Counsel

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a witness who is willing to communicate through counsel should not be compelled to attend a pre-trial examination under oath.
In today’s case (Cabezas v. HMTQ) the Plaintiff was involved in a single vehicle accident and sued the Defendants claiming negligent highway maintenance.  In the course of the lawsuit the Plaintiff attempted to speak with and the “Capilano defendants provided a summary of the evidence Mr. Colville was expected to give should the matter proceed to trial. She stated further: “to the extent that you still wish to speak to Mr. Colville, he has asked that this be arranged through us and that we be present.
The Plaintiff brought an application to compel pre trial examination under oath of this witness but this was dismissed with the Court noting that a witness willing to speak through counsel is indeed being responsive.  In reaching this conclusion Master Harper provided the following reasons:

[4]             Rule 7-5(1) provides as follows:

(1) If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may:

(a) order that the person be examined on oath on the matters in question in the action, and

(b) either before or after the examination, order that the examining party pay reasonable lawyer’s costs of the person relating to the application and the examination…

[11]         Rule 7-5 sets out a protocol which must be followed before an application for an order for a pre-trial examination of a witness can be made. The applicant must establish that the proposed witness has refused or neglected on request by the applicant to give a responsive statement either orally or in writing relating to the witness’ knowledge of the matter in question or has given conflicting statements (Rule 7-5(3)(c)(i) and (ii)).

[12]         The fact that the witness has chosen to communicate through counsel does not amount to a refusal to give a responsive statement (Rintoul v. Granger, 2008 BCSC 1852 at para. 24).

[13]          Mr. Colville is agreeable to attending an interview in the presence of counsel.

Parties of Record Have Standing To Address Pre Trial Witness Examination Orders

Reasons for judgement were released this week (Brooks v. Abbey Adelaide Holdings Inc.) considering the procedural question of whether a party of record has standing to make submissions during an opposing party’s application for an order compelling the pre-trial examination of a witness.  In short the Court held that all parties of record have standing to make submissions during these applications although the standing is limited.  In reaching this decision Master Young provided the following reasons:

[1]             THE COURT:  I have been asked to decide whether a party to an action has standing in a hearing of an application by another party to examine a witness prior to trial under Rule 7-5 of our new Supreme Court Civil Rules.

[2]             Apparently there is no authority on this point under the new Civil Rules..

[12]         I find that the party has a right to make submissions on the scope and the duration of the examination as it relates to relevance and proportionality.

[13]         So I find that they have limited standing. They do not have standing to object to a witness being questioned, because I think that infringes the common law right of property to a witness. But I do find that they do have standing to address procedural issues, proportionality issues and issues of privilege.

[14]         Having said that then, I will allow the plaintiff to make submissions of the application.

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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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