Tag: Rule 7-8(3)

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).

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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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