Tag: Rule 7-8

Scope of "Representations of Counsel" at Case Planning Conferences Discussed


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the scope of appropriate applications at Case Planning Conferences and further the prohibition of affidavit evidence in this venue.
In today’s case (Gill v. A&P Fruit Growers Ltd.) the Plaintiff was injured in a 2004 slip and fall incident.  The Defendant was found 70% at fault for this incident.
As the damages trial neared the Plaintiff brought an application to allow him to introduce evidence from two physicians by way pre-trial deposition.  The Defendant opposed arguing this order should not be made and further that such applications should not be heard at a Case Planning Conference.  Mr. Justice Willcock disagreed and provided the following feedback about the scope of CPC applications:

[17] There is still some uncertainty with respect to the scope of the prohibition against hearing applications supported by affidavit evidence on a case planning conference.  In order to effect the objectives of the Rules by making orders designed to resolve disputes efficiently and in a cost-effective manner on the merits, in my view, it will occasionally be necessary to rule on the manner in which evidence will be adduced at trial.  In some circumstances, even when such matters are hotly contested, they may be determined without affidavit evidence.  That may be the case where the issue may be determined on the basis of representations of counsel as officers of the court.

[18] It has long been the case that the courts have given evidentiary weight to the representations of counsel with respect to evidence to be called at trial, availability of witnesses and procedural questions going to trial management.  In Nichols v. Gray (1978), 9 B.C.L.R. 5 (C.A.), the Court of Appeal reaffirmed a chambers judge’s discretion to give weight to statements of counsel relating to the evidence and the conduct of trial.  It is in that context that the new Supreme Court Rules were enacted.  The prohibition against hearing applications supported by affidavit evidence must be interpreted in the light of that practice.

[19] I adopt as applicable to case planning conferences the views expressed by N. Smith J. in Jurczak v. Mauro, 2011 BCSC 512, and by Gray J. in Enns v. Cahan, 2011 BCSC 54, in addressing the similar provision in the trial management rule prohibiting the granting of orders requiring affidavit evidence: that it is for the trial management judge to decide whether a particular application requires affidavit evidence and whether any affidavits that have been tendered are relevant.

[20] In the case at bar, as in Jurczak, the evidence in the affidavits that were before me added nothing to the submissions of counsel and counsel’s advice to the court with respect to matters that ought to be canvassed at a case management conference, specifically the witnesses availability for trial and the importance of cross-examination of those witnesses to the defence case.  The affidavit evidence that I would have to weigh on the application was like that described in para. 14 of the judgment in Jurczak:

[14]      All of that relates to matters of evidence that counsel expected or wanted to put before the trial judge, the availability of that evidence, and the readiness of the defendant to proceed to trial.  Those are matters of which counsel are expected to advise the court at the TMC and the court is, of course, entitled to assume counsel’s statements are true.  Affidavits in which their legal assistants simply say the same thing about these procedural matters are of no further assistance.

[21] The enumeration of orders that may be made at a case planning conference is exhaustive but Rule 5-3(1)(k) confers a broad discretion on the case planning judge to make orders respecting expert witnesses and Rule 5-3(1)(v) confers a broad discretion to make any order that advances the objectives of the Rules.  The judicial exercise of these discretionary powers requires that some consideration be given to the nature of the orders more specifically enumerated in Rule 5-3.  The Rules contemplate active judicial management of litigation and, in particular, judicial regulation of the role of expert witnesses at trial.  The Rules require that case planning and trial management be conducted with an eye to efficiency and the proportionality of the expense of the process to the value, importance and complexity of the matters in issue.  In my view, an application for an order that expert witnesses be deposed before trial rather than testifying by a video conference at trial is clearly an order of the type that may be made at a case planning or trial management conference, if the factual matrix necessary for making such an order can be established.  Such an order is in the nature of the procedural orders enumerated in Rule 5-3.

Defense Doctor Video Deposition Request Denied


In  the course of a lawsuit it is not uncommon for expert witnesses to occasionally be unavailable for trial.  When this happens their evidence is often recorded by way of pre trial deposition.  If the parties don’t consent to this practice the party wishing to rely on the expert can seek a court order permitting a deposition.  Useful reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing such an application.
In this week’s case (Campbell v. McDougall) the Plaintiff was involved in two collisions.  In the course of her claim she attended a Defence Medical Exam with Dr. Maloon.   He produced a report which the Plaintiff intended to challenge by way of cross examination.  Dr. Maloon was scheduled to be out of the Country at the time of trial and the Defendants lawyer brought an application that his evidence be recorded by way of pre-trial deposition.  The Plaintiff opposed arguing that if the physician was not available to testify in person at the very least he should testify live via video-conference.
Master Bouck agreed with the Plaintiff and dismissed the application.  In doing so the Court provided the following helpful reasons:

[47] The predecessor to Rule 7-8 was Rule 38 of the Rules of Court. The language in these Rules mirror each other except for the new consideration of the possibility and desirability of having a witness testify by videoconferencing: Seder v. Insurance Corporation of British Columbia, 2011 BCSC 823 at para. 4.

[48] The introduction of this factor reflects a recognition by the Lieutenant Governor-in-Council that modern technology will allow a witness outside of the court’s jurisdiction to provide live and simultaneous evidence — in effect, to be in open court…

[55] In this case, Dr. Maloon is an important witness for the defence. From this observer’s perspective, there are several aspects of the report that invite careful and thorough cross-examination by plaintiff’s counsel.

[56] It is fairly easy to anticipate areas of cross-examination where objections might be raised by the defence. The court will then be asked to rule on the objections at trial in Dr. Maloon’s absence. The plaintiff will not have the opportunity to cross-examine Dr. Maloon on issues arising from evidence led at trial, or garnered through the cross-examination of the plaintiff’s own experts.

[57] The concerns raised by Mr. Justice Harris in Byer v. Mills are reasonably anticipated in this case. It is desirable that Dr. Maloon testify in open court; videoconferencing offers this opportunity.

[58] The defence has not provided any evidence to contradict the plaintiff’s evidence as to the availability of videoconferencing technology in southern Africa. How that videoconferencing will be set up is yet to be determined. Nonetheless, the criteria under Rule 7-8(1)(d) is the possibility of the use of videoconferencing.

[59] Another factor to consider here is that Dr. Maloon was aware of the trial date and the possibility of his sabbatical when he agreed to perform this independent medical examination. While the court would never discourage or be critical of the terms of the sabbatical taken by Dr. Maloon, the consequences of that sabbatical should not trump the objective of achieving a fair trial in this matter.

[60] Finally, it should be noted that the court’s order is simply to dismiss the application to have Dr. Maloon attend at a deposition on September 8, 2011. The order will not state that Dr. Maloon’s evidence must be provided by way of videoconferencing although that appears to be the parties’ intention as neither wishes to disrupt Dr. Maloon’s sabbatical by flying him to Victoria for a day or two of testimony: Rule 7-8(3)(e).

Deposition Applications Under the New Rules of Court


Earlier this year Mr. Justice Harris provided reasons in obiter setting out some concerns as to why parties should limit the use of deposition evidence at trial.  This week, reasons for judgement were released considering a contested application for a witness to testify by way pre trial deposition.  This is the first reported case I’m aware of dealing with such an application under the new Rules of Court.
In this week’s case (Seder v. ICBC) the Plaintiff was injured in a motor vehicle collision.  ICBC spoke with the Plaintiff’s employer and wished to call her as a witness at trial.  The employer lived in Alberta so ICBC asked for permission to conduct a pre-trial deposition and introduce that evidence at trial.  The Plaintiff opposed this but was willing to accommodate the witness by allowing her to testify via video-link.  ICBC did not agree to this compromise and brought an application for an order requiring the witness to attend a deposition.
Master Young dismissed ICBC’s application but did give the witness permission to testify via video-conferencing.  In doing so the Court provided the following reasons:

[3] In determining whether to exercise its discretion to order an examination under subrule (1), the court must take into account:

(a)         the convenience of the person sought to be examined,

(b)        the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence,

(c)        the possibility that the person will be beyond the jurisdiction of the court at the time of the trial,

(d)        the possibility and desirability of having the person testify at trial by video conferencing or other electronic means, and

(e)        the expense of bringing the person to the trial.

[4] The former Rule 38 is essentially the same rule as the new Rule 7-8, with the exception that a new ground has been included at 7-8(3)(d) regarding the possibility of testifying at trial by video conferencing…








[5] In Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1830, Mr. Justice McColl discussed the purpose and intent of Rule 38 shortly after it was incorporated into the Rules. The Rule, he said, is attempting to strike a balance between the fundamental principle that witnesses should testify live before the court and the preservation of evidence which might not be available at trial because it is not always possible to get witnesses, willingly or otherwise, before the courts. His Lordship said that Rule 38 intended to provide the parties with the opportunity to preserve and present evidence when there is a possibility that a witness would not otherwise be heard and thus adversely affect one of the litigants at trial. The emphasis was on the availability of the evidence, not the convenience of counsel.

[6] The mischief to avoid in interpreting the Rule, is that trial would become a “hodge-podge of deposition evidence along with viva voce evidence in the conduct of a trial merely to convenience counsel or indeed potential witnesses” (Abermin at p. 3)…

[33] Ms. Jacob is not a central witness. She is being called to give brief evidence relating to loss of earnings. It is not proportionate to pay three days’ travel expenses to have her testify for an hour and fly home the same day. This travel expense could be avoided by permitting her to attend at the trial by video conference. She is a cooperative witness, but out of an abundance of caution the third party still intends to subpoena her. The cost of the applications cannot be avoided if the third party wants to ensure her attendance. That cost would be incurred whether she attended for a deposition or for a trial.

[34] I have to keep in mind the problems with preparing defence evidence prior to the trial without a judge presiding, as articulated by Justice Harris in Byer. It strikes me that these problems which interfere with the effectiveness and usefulness of the evidence at trial should only be ordered in exceptional circumstances where the evidence will be lost if not recorded prior to trial.

[35] In cases such as this case before me with the most unexceptional facts, the proportionate procedure would be video conferencing.

[36] I dismiss the third party’s 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.

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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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