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:
 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.
 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.
 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.
 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:
 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.
 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.