Tag: Witness List

ICBC Trial Preparation Neglect “Deserves Sanction and Rebuke”

The latest in a recent line of cases critical of ICBC litigation tactics was published today by the BC Supreme Court, Vancouver Registry, finding that ICBC’s neglect of timely trial preparation was deserving “sanction and rebuke”.

In today’s case (Diaz v. Nowack) the Plaintiff was injured in a collision and sued for damages.  Fault was admitted by the Defendants and the matter was set for a 10 day trial.  The Defendants failed to list all of their proposed witnesses by the deadline imposed at a Trial Management Conference and did not provide certain “will say” statements for some witnesses by the deadline.

The Plaintiff sought to exclude the late evidence but the Court found a trial adjournment was a more appropriate remedy.  The Court found this was still prejudicial to the Plaintiff and ordered that the ICBC insured Defendants pay the Plaintiff “costs thrown away payable forthwith

The reason provided for the late evidence was because “instructing client did not authorize work to mobilize witnesses until close to the commencement of the trial and only after mediation was unsuccessful“.  In finding this unacceptable and deserving of rebuke Madam Justice Choi provided the following critical comments:

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Witness Excluded For Failing to Be Listed in Trial Management Conference Brief


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:
[4] …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.
[5]  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.
[6]  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.
[7]  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.

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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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