IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100706

Docket: M093344

Registry:
Vancouver

Between:

Cody Leach

Plaintiff

And:

Mason Kelly

Defendant

Before:
The Honourable Mr. Justice Willcock

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT:  This is a motion brought by the defendant, Mason Kelly, for
an order that Rik Rohrback attend at an examination under oath or affirmation
at the office of Mitchell Preston Nardi, Court Reporters, at Suite 101, 808
Nelson Street, Vancouver, at a date and time set by counsel for the defendant,
Mason Kelly, and for an order that Mr. Rohrback produce at the appointed
examination all relevant documents in his possession or control relating to
this action and the employment of the plaintiff, Cody Leach.

[2]            
The application is made in the context of a claim which was commenced by
writ of summons and statement of claim dated July 8, 2009.  The action
arises out of a motor vehicle accident said to have occurred on February 20,
2009, on the Coquihalla Highway as a result of the negligence of the defendant
Kelly.

[3]            
The plaintiff, Cody Leach, claims to have suffered a severe concussion,
a severe left shoulder injury, fractured ribs, broken teeth, post-traumatic
stress disorder and other significant injuries.  He claims general damages and
special damages including, as I understand the evidence that I have heard this
afternoon, a significant claim for loss of income or future income-earning
capacity.

[4]            
In support of the claim the plaintiff has produced the documents which
appear to have been generated by Mr. Rohrback or as a result of
information provided by Mr. Rohrback.  The plaintiff has produced and
apparently intends to rely upon or has in the past relied upon a letter written
by Mr. Rohrback which appears at tab 14, page 14 of the material before me
dated April 20, 2009.  In that letter, Mr. Rohrback says he employed
the plaintiff, Cody Leach, for two days in February 2009 and intended to
have him start work fulltime on February 23, 2009.  At that time Mr. Rohrback
indicated that the company that he operates, Sterling Electric, sponsors all
its electrical apprentices though the Industry Training Authority, and that, as
Cody Leach is in a registered apprenticeship with the ITA, Sterling Electric would
have sponsored him.  Mr. Rohrback indicates that his starting wage was
going to be $17 per hour and that Mr. Leach would be working 30 to 40
hours per week.

[5]            
In addition, the plaintiff has produced, pursuant to the rules requiring
delivery and notice of expert opinion evidence, a report that appears at tab 12
of the chambers brief.  This is the report of Sheldon Lewkis, a neuropsychological
assessment.  The date of the report is April 9, 2010.  It is based upon
assessments in March of this year.  Dr. Lewkis, at page 19 of his
report, refers to information that he collected and relied upon in support of
his opinion.  Dr. Lewkis says that he asked Rik Rohrback of Sterling
Electric to comment on the plaintiff’s experience, having some role in
overseeing Cody’s work for some period of time in 2007.  Dr. Lewkis
includes the following comment in his report, referring to information from Mr. Rohrback: 
“He was totally capable of doing his job.  He was probably pretty much where he
should have been with his experience.”

[6]            
Not long before the motor vehicle accident Mr. Rohrback was apparently
intending to hire Cody.  In relation to his prospective employment, he
comments:  “He was worth his wage for sure.  I was ready to put him on the
payroll.  He would have had fulltime work for a period of time for sure.”

[7]            
The plaintiff appears to intend to rely upon the evidence of
Mr. Rohrback to prove his loss of income or loss of income-earning
capacity.

[8]            
There is evidence before me that the defendant has made some attempts
over a significant period of time to question Mr. Rohrback with respect to
his evidence.  The attempts by the defendant to do so have led to some
controversy, in part as a result of a strongly-worded letter of October 30,
2009, in which Mr. Rohrback was referred not only to the rules which
provide that he may be examined as a witness pursuant to Rule 28 but also to
the consequences of not appearing in response to a court order.  That caution
to Mr. Rohrback, in the circumstances, may have been somewhat premature.  The
correspondence to Mr. Rohrback, seeking an interview and notifying him of
the potential consequences of a failure to cooperate was dated October 30,
2009.  The attempts at collecting evidence from Mr. Rohrback go back to
before that date in October 2009.

[9]            
Mr. Rohrback had some reluctance to respond to the correspondence. 
That led to an application being brought before the court and the order made by
Mr. Justice Cullen on February 26, 2010.  The application for the
Rule 28 order at that time was adjourned to come on for hearing again
before me today.

[10]        
The trial of this action is set for August 3, 2010.  It is not far
off and it is now a matter of some urgency that the parties ensure that their
cases are prepared for trial.

[11]        
On the eve of the application today, the defendant received an affidavit
from Mr. Rohrback in which the he attempts to respond to the questions
that have been posed of him in writing.  The witness has responded to each of
the 36 questions, but the defendant points to a number of inconsistencies
arising out of the previously-provided material and the statements made by the
witness in response to the outstanding questions.  In particular, in response to
questions 7, 8 and 9 where Mr. Rohrback was asked questions about Mr. Leach’s
job performance based on either his own personal experience or information he
received from others employed at his business, or information received from
customers, Mr. Rohrback has indicated that he did not work on the job site
with Cody Leach, he had no feedback from other employees regarding his work,
either positive or negative, and he received no feedback from customers
regarding Cody’s work performance or other issues.  The defendant points out
that these answers are inconsistent with the information provided to Dr. Lewkis
by Mr. Rohrback at the time of the assessments in March of this year and
are inconsistent with the April 20, 2009 letter to which I referred to
earlier.

[12]        
Further, in response to question 22, Mr. Rohrback indicated that he
would definitely re-hire Cody based on his experience.  Again, this is inconsistent
with the evidence of Mr. Rohrback that he was unable to say anything about
the quality of Cody’s work from personal experience and he had received no
feedback from employees or customers.

[13]        
The defendant also points out that responses to questions with respect
to when Cody was about to begin his work, or what the terms of his employment would be, are inconsistent.  At question 17, Mr. Rohrback
was asked:  “Is it correct that Cody Leach was hired by your company to start
fulltime on February 23, 2009?”  He was also asked a number of questions about
how and when the decision to hire Mr. Leach was made.  Mr. Rohrback
answered the question by saying:

I cannot remember if I told him
that he would start work on an exact date.  I know I told him I had work for
him especially while my employee was in school, and after my employee returned
from school we would have to see what our workload was.  It was understood
between Cody and myself that I would have work for him for an undetermined
amount of time.  The work in our trade fluctuates frequently.

[14]        
The defendant points out that these answers are not consistent with
those given in the April 20, 2009 letter, where Mr. Rohrback said that
Mr. Leach would be employed on a fulltime basis (30 to 40 hours per week) commencing
on a specific date and earning a specific amount.

[15]        
In response to other questions, Mr. Rohrback gives answers which
are not as complete as the defendant would like to see, but I am motivated in
making the order that I make today primarily by the inconsistencies between the
April 20, 2009 letter and the statement apparently given to Dr. Lewkis,
on the one hand, and the written responses to the questions that have now been
provided by Mr. Rohrback, on the other.

[16]        
The rule in question, Rule 28 of the old rules, provides:

Where a person, not a party to an
action, may have material evidence relating to a matter in question in the
action, the court may order that the person be examined on oath on the matters
in question in the action and may, either before or after the examination,
order that the examining party pay reasonable solicitor’s costs of the person
relating to the application and the examination.

[17]        
An order has been made directing the defendant to pay the reasonable
costs incurred by Mr. Rohrback in answering the questions that have been posed
of him to date.

[18]        
Rule 28(3) describes the material that must be provided on an application
for an order.  It states:

An application for an order under subrule (1) shall be
supported by affidavit setting out

(a)     the
matter in question in the action to which the applicant believes that the
evidence of the proposed witness may be material,

… and

(c)     that the proposed witness has
refused or neglected upon request by the applicant to give a responsive
statement, either orally or in writing, relating to the witness’ knowledge of
the matters in question, or that the witness has given conflicting statements.

[19]        
Counsel for the witness, Mr. Bobb, points out that the witness does
not refuse to give responsive statements, and that he has given a full answer
to each of the questions that have been posed of him in writing.

[20]        
In response, Mr. O’Flynn, for the applicant, says the rule requires
that the statement be responsive but also provides that where the statements
given by the witness are conflicting, that may serve as a ground for granting
an order pursuant to Rule 28,.

[21]        
I accept the submission of Mr. O’Flynn, that the rule appears
clearly to be intended to permit a party to obtain an order for examination of
a witness where the witness has given responsive statements in writing that
conflict with statements previously given.

[22]        
Mr. Bobb says that such conflicts should be left for resolution on
cross-examination at trial.  In my view the judgment of this court in the Coates
v. Triance, 2010 BCSC 294, a decision of Madam Justice Griffin, supports
the proposition put to me by Mr. O’Flynn that the court should, on an
application pursuant to Rule 28, have regard to the essential objectives of the
rule, which is a speedy, just and efficient resolution of disputes.  Parties
have an interest in ensuring that conflicting statements made by witnesses are
addressed before trial.  I reject the submission made by Mr. Bobb that it
is enough to give responsive statements and that where they conflict with previous
statements given by the witness, that is a matter that should be left for
resolution at trial.

[23]        
I accept the submission made by Mr. O’Flynn that given the
proximity of the trial it would be inappropriate for the court to order that
further written questions be put to the witness and that answers be given in
writing to those questions.  The time left to the parties simply makes that an
unrealistic proposition.

[24]        
The applicant has established that the witness has material evidence
relating to a significant matter in question in the action.  I am of the view
that the applicant has established that the answers now provided, after long
delay, are in conflict with previous statements.  I am satisfied that it is in
the interests of a just and efficient resolution of the dispute between the parties
that an order be made requiring Mr. Rohrback to attend an examination on
his evidence on the matters in question in this action.  I will grant the order
sought by the applicant on the terms set out in the notice of motion.

[25]        
Because the application is brought in relation to a witness and because
the rule generally provides that witnesses should be reimbursed for the expense
of providing answers to parties to litigation, I am not inclined to make any
order with respect to costs on the application, but leave those as costs in the
cause and leave in place the order made by Mr. Justice Cullen that the
witness, Mr. Rohrback, will continue to be paid reasonable solicitor’s
costs associated with responding to the questions put to him by the defendant. 
Because I am of the view that the affidavit was produced late and because I am
of the view that the oral examination of the witness is necessary because of
conflicting statements having been given by the witness, I am of the view that Mr. Rohrback
should not receive any costs in relation to today’s application.

[26]        
MR. O’FLYNN:  My Lord, so the order for costs will be – should it be no
costs to any party, just simply be for this application there will be no costs
to any party?

[27]        
THE COURT:  No costs to any party on this application.

[28]        
MR. O’FLYNN:  On this application, and otherwise Judge Cullen’s order
will apply to the written questions.

[29]        
THE COURT:  To the costs associated with attendance at and responding to
other outstanding questions.

__________
"Willcock J." ______________
The Honourable Mr. Justice Willcock