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More on Trials and Examinations For Discovery – Keeping Evidence Out For Lack of Relevance

As I’ve previously written, evidence given by a party at examination for discovery can be damaging.  The opposing side can read in portions of the transcript to the trial judge in an effort to advance their case or hurt yours.
A limit on this is relevance.  If the proposed discovery questions and answers are not relevant (even if no objection to relevance was made at the examination for discovery) a trial judge can keep the evidence from going in.  Reasons for judgement were released yesterday by the BC Supreme Court, Victoria Registry, dealing with this practice point.
In yesterday’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey.  The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet.   At trial the Plaintiff’s lawyer attempted to read in portions of the examination for discovery evidence obtained in pre-trial investigations.  Mr. Justice Macaulay refused to let certain portions of the proposed evidence in on the basis that it was not relevant.  While the result reached in this case is very fact specific the Court provided the following useful summary of the law of relevance and discovery evidence:

[4] The subrule, as applicable here, reads:

(27)      (a)        If otherwise admissible, the evidence given on an examination for discovery by a party or by a person examined under Rule 27(4) to (12) may be given in evidence at trial, unless the court otherwise orders, but the evidence is admissible only against

(i)         the adverse party who was examined,

(ii)        the adverse party whose status as a party entitled the examining party to conduct the examination under Rule 27(4) to (12), or                      …

[5] A plain reading of Rule 40(27)(a) strongly suggests that the evidence an examining party seeks to read in must be admissible in the usual sense; that is, the evidence must be relevant and not subject to any exclusionary rule. Even if the evidence is admissible, the wording further suggests that the court has a residual discretion to exclude it. In my view, the latter requires me to consider whether admitting the evidence at this stage of the trial would result in unfairness…

[11] I must determine questions of relevance having regard to the issues framed in the pleadings. Throughout, I have applied the description of relevance that Cory J. set out in R. v. Arp, [1998] 3 S.C.R. 339, 166 D.L.R. (4th) 296 at para. 38:

38        … To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to “increase or diminish the probability of the existence of a fact in issue”. [Citation omitted.] As a consequence, there is no minimum probative value required for evidence to be relevant. [Citation omitted.]

As is well known, questions of relevance are largely determined by applying common sense and experience within the above framework.

[12] I also take into account the more recent statement of the Supreme Court of Canada in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298 at para. 30:

[30]      Relevance can only be fully assessed in the context of the other evidence at trial. However, as a threshold for admissibility, the assessment of relevance is an ongoing and dynamic process that cannot wait for the conclusion of the trial for resolution. Depending on the stage of the trial, the “context” within which an item of evidence is assessed for relevance may well be embryonic. Often, for pragmatic reasons, relevance must be determined on the basis of the submissions of counsel. The reality that establishing threshold relevance cannot be an exacting standard is explained by Professors D. M. Paciocco and L. Stuesser in The Law of Evidence (4th ed. 2005), at p. 29, and, as the authors point out, is well captured in the following statement of Cory J. in R. v. Arp, [1998] 3 S.C.R. 339, at para. 38 …

As readers of this blog know the BC Supreme Court Rules are being overhauled effective July 1, 2010.   The Rule discussed in this post is reproduced in almost identical form and can be found at Rule 12-5(46) so this case ought to retain its value as a precedent moving forward.

Examinations For Discovery and Your BC Injury Claim – A Video Introduction

Here is a video I’ve uploaded to YouTube discussing examinations for discovery in BC Injury lawsuits:

An Examination for Discovery is a process where the opposing side can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case.  It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s evidence can play a key role in whether the case settles or proceeds to trial.
In ICBC claims some of the usual topics that are covered are the circumstances of the accident, the injuries sustained, the expenses incurred, the course of recovery of the injuries, wage loss details and other the effects of the accident related injuries on lifestyle  (You can click here to read a more in depth article about what is covered at a Discovery).
I hope this introductory video and the linked articles take some of the mystery out of the process.

Damaging Your Opponents Case at Trial Through Examinations for Discovery

Examinations for Discovery in ICBC Claims are conducted for 2 primary reasons.  The first is to learn about your opponents claim, the second, and perhaps equally important reason is to get admissions which can be used against your opponent should the claim proceed to trial.
When a damaging answer from an examination for discovery is read into evidence at trial it can have the same impact as if the damaging fact was testified to live in court.  If a discovery answer contradicts evidence given at trial this can have an impact on credibility and can significanty effect the outcome of trial.
Rule 40(27) of the BC Supreme Court Rules addresses the use of discovery evidence at trial.  This Rule, however, imposes certain limits on the abilities of opponents to use transcripts at trial.  Specifically one limitation contained in the Rule states that the evidence is ‘admissible only against the adverse party who was examined…’

This limit should be kept in mind when suing multiple defendants and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this evidentiary limitation in an injury claim trial.

In today’s case (MacEachern v. Rennie) the Plaintiff sued multiple parties for damages as a result of serious injuries.  At trial the Plaintiff sought to read in portions of the Defendants examinations for discovery.   The Plaintiff sought to have some of this evidence ‘used not only against the party who was examined, but also against all the other defendants‘.  Mr. Justice Ehrcke rejected this argument and folowed the strict reading of Rule 40(27) limiting the use of the answers only against the defendants who gave them.  The Court summarized and applied the law as follows:

[13]         In any event it must be noted that the Rules of Court were amended in 1985 and again in 1992. The current form of Rule 40(27) is not the same as the rule upon which McEachern C.J.B.C. was commenting in Foote v. Royal Columbia Hospital. In 1982 there was nothing equivalent to the current Rule 40(27)(a).

[14] I find that the current law is correctly stated in Fraser and Horn, The Conduct of Civil Litigation in British Columbia, Vol. 1 looseleaf (Markham:  LexisNexis Canada Inc., 2006) at paragraph 18.10:

An amendment to Rule 40(27)(a) in 1992 re-affirmed the long-standing jurisprudence that the testimony of a party on discovery was not admissible against his co-party. In 1986 the traditional rule had been held to have been superceded as a result of a rule amendment in 1985. Because of the 1992 amendment, it is once again the law that the evidence of one person on an examination for discovery is not ordinarily admissible against a co-party.

[15] Accordingly, the questions and answers from the examination for discovery of Mr. Rennie requested by the plaintiff and the additional questions 396 and 397, along with their answers, shall be read into evidence at trial, but they do not constitute direct evidence against any of the defendants except Mr. Rennie.

This decision serves as a good reminder that when ICBC Injury Claims are prepared for trial care should be taken to ensure there is admissible evidence against all of the Defendants for all matters in issue.