IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100217

Docket:
M082223

Registry: Vancouver

Between:

Kathleen
Coates

Plaintiff

And

Vincent
Phillip Triance and Eva Triance

Defendants

Before: The Honourable Madam Justice S. Griffin

Oral Reasons for Judgment
In Chambers

[1]            
THE COURT:  This
is an application by a plaintiff for an order allowing a Rule 28
examination of a witness, Ms.Kim Lo.  The application arises in the context of
a claim for damages for personal injuries sustained in a motor vehicle accident,
which occurred on October 29, 1999.  The proposed witness is an insurance
adjuster for ICBC, the automobile insurer of the defendants.

[2]            
The application is opposed by counsel for Ms. Lo
and also by counsel for the defendants.  The respondents to this application
say that when the request for a Rule 28 examination was made, the defendants
requested that the plaintiff provide written questions.  The plaintiff did
this, and the witness, Ms. Lo, then provided responses to the questions.  The
respondents say that since the witness has already provided written responses
to the questions, the court should refuse the application for an oral
examination of the witness.

[3]            
In understanding the context of the application,
it is important to consider the pleadings.  The plaintiff’s claim is against
the defendants in relation to the negligent operation of a motor vehicle which
caused her personal injuries.  The statement of defence pleads at paragraph 8
that the plaintiff’s claims have been satisfied by way of settlement,
satisfaction and accord and/or release made between the plaintiff and the
defendants whereby, in or around May 2000, the plaintiff accepted an offer to
settle all of her existing claims, whether known or unknown, made on behalf of
the defendants, and funds were advanced to her in full and complete
satisfaction of her claims.

[4]            
The plaintiff has filed a reply to the statement
of defence; she pleads that the settlement was manifestly unfair and
unconscionable and that the release should be set aside.  In this regard, the
plaintiff sets out in the reply to the statement of defence facts involving the
witness, Ms. Lo, who was the insurance adjuster that dealt with the plaintiff
and handled her initial claim.  The facts pleaded by the plaintiff in the reply
allege that the plaintiff was unrepresented through the duration of the claims
process and that the adjuster actively discouraged the plaintiff from retaining
legal counsel. 

[5]            
Thus, a key factual issue in this case on the
pleadings is whether a settlement and release procured by ICBC from the
plaintiff, when she was 19 and unrepresented, should be set aside.  As
mentioned, the witness, Ms. Lo, is the adjuster who procured the settlement,
and the plaintiff’s position is that she acted inappropriately.

[6]            
Ms. Lo was a participant in a key factual event
in question in this case.  What she knows and does not know about the
circumstances of her dealings with the plaintiff and the settlement and release
relates to a material issue at trial: the enforceability of that settlement and
release.

[7]            
Sometimes it is preferable to deal with a
non-party witness by written questions and answers.  But the fact that a
witness is willing to proceed this way is not a complete answer to an
application for a Rule 28 examination.  In this regard, I refer to the case of Cheema
v. Kalkat, 2009 BCSC 736.

[8]            
Here there is evidence of the questions posed in
writing and the written answers.  There were 200 questions.  I find the answers
provided by Ms. Lo to be not responsive in a way which will help the plaintiff
learn sufficient information to be able to assess the merits of the issue of
whether or not there was an enforceable settlement and release.  The responses
provided by Ms. Lo leave many questions unanswered on the material factual issues
to which she was a witness.  Many responses are superficial and unhelpful.

[9]            
I conclude that if the plaintiff does not have
the opportunity to examine this witness, the plaintiff cannot assess her case
before trial and therefore cannot form an informed view and possibly settle the
case, and the plaintiff could be taken by surprise at trial.

[10]        
Ms. Lo’s counsel says that the responsiveness of
Ms. Lo’s answers must be considered in the context of her preamble to her
answers.  In her preamble she explains that the paper file on this matter has
been destroyed by ICBC and all that remains is a computer file.  She says that
she has little independent or revived memory of the events.  The preamble seeks
to qualify her answers which follow by stating that some might be based on
information recorded in the computer file, some might be based on independent
memory, some might be based on revived memory, and some might be based upon her
usual practice.  However, the answers provided do not in any way attempt to
explain which answer is based on which source:  the computer file, her
independent or revived memory, or her usual practice.

[11]        
I accept that the fact that the witness may have
difficulty recalling and may not have all former records available may be a reason
why she is not responsive to questions.  However, it does not take away from
the fact that she has not responded to many of the questions.  If she is
labouring under a loss of recollection, an oral examination probing her memory
may jog her memory and cause her to remember something relevant.

[12]        
The fact that the witness purports to have
little recollection is not a barrier to a Rule 28 examination, especially when
the witness is the key witness to material events.  I note that it is common for
witnesses’ first responses to questions to be “I don’t recall,” but rarely does
the inquiry end there.  Sometimes they are telling the truth and do not recall,
sometimes their recollection can be refreshed by further questioning, and
sometimes it is revealed that the lack of recollection is simply evasive and
false.

[13]        
In exercising my discretion on whether or not to
order a Rule 28 examination, I must consider the object of the Rules of
Court to secure the just, speedy, and inexpensive determination of every
proceeding on the merits.

[14]        
There is no question that an examination of Ms.
Lo will assist in a determination of the proceeding on the merits.  She is a
key witness to events that form a central issue in the case. 

[15]        
There is also no question that an examination of
her will be just.  She is not prejudiced in any way.  Her involvement in the
material events arose in the course of her employment with ICBC, which
continues to be her  place of employment. Her evidence on these matters will
not be personally embarrassing or tread on an area of her own personal
privacy.  On the other hand, the plaintiff could be prejudiced if she is not
allowed to investigate and explore Ms. Lo’s evidence in advance of trial.

[16]        
Here, I consider that a Rule 28 examination will
be the most speedy and inexpensive way of proceeding to determine this case on
its merits.  The written questions and answers exchanged already clearly reveal
to me that the questions for Ms. Lo involve a scope of examination that is
appropriate but that is most efficiently conducted by oral examination rather
than by written questions and answers.  I am satisfied that more time will be
taken up by lawyers drafting further written questions and drafting written
responses than would be taken up by a Rule 28 examination.

[17]        
Further, there is a disadvantage to written
questions and answers where, as here, the witness was a first-hand participant
in a critical factual matter.  Written answers can create an artificiality in
the evidence because of the lawyer’s influence over the answers.  The lawyer’s
influence can create what is sometimes described as “wriggle room” for the
witness to provide surprising evidence at trial that differs from the
perception created by the written answers.  Indeed, the written answers here
attempted to set up considerable “wriggle room” with the preamble.

[18]        
Unlike an oral examination, the written exchange
of questions and answers in a situation like this does not allow the same
opportunity for the questioner to clarify the answer and obtain more detail
than a superficial answer provides, or to commit the witness to that answer so
as to avoid surprise at trial.

[19]        
Counsel for Ms. Lo suggests that if this court
was to exercise its discretion to order a Rule 28 examination, the scope of the
examination should be limited to those questions for which there were not
proper responses.  In this case, I find that it would be an inefficient and
expensive way of proceeding and it would defeat the very reason I find it
important to allow a Rule 28 examination, namely, to allow the flexibility that
an oral examination provides.

[20]        
I also consider that it would venture into a
realm properly belonging to counsel if this court was to dictate what can and
cannot be asked or answered on the examination.  I also do not consider it an
appropriate use of this court’s resources to have the court examine each of the
200 plus written questions and answers and then give reasons on the
acceptability or non-acceptability of each, or the acceptability or
non-acceptability of each objection, the latter of which I have not received
submissions on beyond the point that a witness on a Rule 28 examination cannot
be compelled to inform herself.

[21]        
In this case, the most efficient way of
proceeding so as to allow the merits of the issues in the case to be ultimately
determined, would be by way of a free-flowing examination of the witness as
counsel for the plaintiff sees fit, rather than requiring the plaintiff to
follow the court’s checklist of acceptable and unacceptable questions.

[22]        
As noted in Yemen Salt Mining Corp. v.
Rhodes-Vaughan Steel Ltd. (1977), 3 B.C.L.R. 90 at 100, a Rule 28
examination may extend to all that is relevant generally to all parties in the
action. 

[23]        
Therefore, in allowing the plaintiff’s
application, I make no ruling on the acceptability of particular questions in
the previously provided list of questions or on the validity of any objections
to those questions.

[24]        
That completes my ruling.

 [DISCUSSION WITH COUNSEL]

[25]        
THE COURT:  I will make my order subject to
allowing the witness liberty to seek to have her costs paid at the end of the
case, and that is quite appropriate, I agree.  And that would be costs of this
motion.  That should be in the cause as well.  So it will be costs of your
appearance here as well as costs –

[26]        
MR. MARSHALL:  In the course of the examination.

[27]        
THE COURT:  Yes. 

 [ADDITIONAL DISCUSSION WITH
COUNSEL]

[28]        
THE COURT:  If the parties are willing to
consent to the examination taking place before the examination for discovery of
the plaintiff, fine, but I am not going to order that.  In terms of the actual
date of the examination, I am going to order that it be set by agreement of
counsel, and if it cannot be agreed, you have liberty to come back before me at
a 9:00 a.m. or a 4:00 p.m. to seek directions.

___________________________________
The Honourable Madam Justice S. Griffin