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