One of the changes in the new BC Supreme Court Civil Rules is the requirement for parties to produce a list of witnesses in their trial brief to be exchanged 7 days prior to a Trial Management Conference.
In addition to this Rule 12-5(28) prohibits a party from calling a witness who was not listed “unless the court orders otherwise“. The first reasons for judgement that I’m aware of addressing this subrule were recently shared with me.
In the unreported case (Topkins v. Bruce) the Defendant attempted to call an unlisted witness at trial. Mr. Justice Curtis refused to allow the witness to testify providing the following reasons:
 …The new Rules say that you must give a list of your witnesses no later than 28 days before the trial, or the Trial Management Conference. There is a Trial Management Brief, which happebd to be late filed; that is not a big deal, a late filing, but it just adds to the approach, I guess. Although the defendant knew that Mr. Simm existed, the Trial Management Brief says “lay witness number one” and “lay witness number two”. This not only does not conform with the Rules, but if permitted would deliberately frustrate them.
 The purpose of knowing who the witnesses are is so that the other side can prepare their case, and the Judge, if they want, can order a statement concerning the witnesses, as well as estimate the proper lenght of trial.
 At the Trial Management Conference, September 30th, a direction was given that the witness list will be provided at a subsequent date. The name of the witness was not provided until after that date. The explanation is taht the address for the witness was not discovered until later.
 In the circumstances of this case, I am not prepared to allow Mr. Simm to testify, because one, I do not think his evidence is going to be particularly relevant in the circumstances of the case; two, his name was not disclosed, although it was known at the Trial Management Conference, and three, he name was not disclosed, although known, on the date that the Trial Management Conference Judge had directed that his name be given.
To my knowledge this decision is not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
Tag: Trial Brief
Order in Council #191 was approved by the Ministry of the Attorney General on May 26, 2011. This order comes into force on July 1, 2011 and makes various amendments to the BC Supreme Court Civil Rules.
I have a copy of the order and am happy to share it with anyone who contacts me and requests a copy.
None of the changes are drastic and they comprise of little more than minor adjustments. A non-exhaustive list of the highlights are as follows:
- Obligations for responding to a lawsuit are changed now being triggered based on where a party is served as opposed to where they reside
- More simplified procedures for lawsuits transferred from Provincial Court
- Permission for parties to jointly request a Judicial Settlement Conference
- More simplified procedures for default judgement
- The creation of discretion to place a matter on the trial list even if a trial certificate is not filed in time
- Changes to Form 41 (Trial Briefs)