IN THE SUPREME
COURT OF BRITISH COLUMBIA

Date: 20120424

Docket: M085239

Registry: Vancouver

Between:

Jason Walker

Plaintiff

And:

John Doe and Insurance Corporation of
British Columbia

Defendants

Before: The Honourable Mr. Justice
Voith

Oral Ruling re Admissibility
of ICBC Documents

[1]            
THE COURT: These reasons arise out of an
objection brought today by counsel for ICBC during the course of the
cross-examination of its expert, Dr. Toor. The following facts are
relevant to and underlie the application.

[2]            
The plaintiff, Mr. Walker,
claims that he was struck by a loose tire from an unidentified vehicle while he
was riding his motorcycle. The plaintiff has pleaded and relies on s. 24
of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231. By virtue of
that provision, ICBC is a nominal defendant in this action.

[3]            
Dr. Toor is a
professional engineer. He has provided several opinions that individually and
in combination call into question the plaintiff’s description of how he was
injured. One of those opinions suggests that had the plaintiff’s motorcycle
been struck in the way he describes, the motorcycle would have fallen over.

[4]            
Counsel for the
plaintiff was about to make reference to two documents in his cross-examination
when this objection was brought. The two documents apparently originate from
internal ICBC manuals. One pertains to the safe handling of motorcycles, the
other to the proper means of inspecting and fastening tires on vehicles, including
commercial vehicles. Apparently, in an earlier case, Dr. Toor stated that
he considered the contents of these manuals to be authoritative, at least on
some issues.

[5]            
Two further facts
are relevant. First, counsel for the plaintiff has advised me that he was
unaware of the existence of these ICBC materials or manuals until this past
weekend. Second, the defendant did not list the materials in question, those
being its own documents, because it too was unaware of their existence. I
accept what both counsel have told me in this regard.

[6]            
The defendant
objects to the plaintiff’s reference to and reliance on these documents because
they were not listed on the plaintiff’s list of documents. The defendant also
argued that Rule 7-1(9) of the Supreme Court Civil Rules, B.C. Reg. 168/2009,
makes the disclosure requirements on a party more stringent than they have
hitherto been. The defendant does not argue that the materials are not
probative of the issues presently before the jury.

[7]            
Rule 7-1(9)
provides:

Amending the list of documents

(9)  If, after a list of documents has been served under
this rule,

(a) it comes to the attention
of the party serving it that the list is inaccurate or incomplete, or

(b) there comes into the
party’s possession or control a document that could be used by any party of
record at trial to prove or disprove a material fact or any other document to
which the party intends to refer at trial,

the party must promptly amend the
list of documents and serve the amended list of documents on the other parties
of record.

[8]            
I was directed to
the case of Houston v. Kine (Appendix A: Ruling Concerning Surveillance
Evidence), 2010 BCSC 1289, as being relevant to the application of Rule 7-1(9).
The Houston decision, this element of which was upheld on appeal, at
2011 BCCA 358, in fact addresses the application of the former Rule 26(13)
and the discretion that is conveyed under Rule 26(14). I have been unable, in
the time available to me, to find any authority that addresses the ambit and
language of Rule 7-1(9).

[9]            
The circumstances
in Houston were quite extreme. Those circumstances were described by
Hinkson J.A.:

[5]        The
trial in this case was initially set for five days beginning October 26, 2009. By
October 30, 2009, the plaintiff’s case had not been completed, and the trial
was adjourned until March 29, 2010. The trial resumed as scheduled, and on
March 30, counsel for the defendants applied to introduce a video tape into
evidence, and to call ten witnesses who had not been identified in his list of
witnesses that he provided pursuant to an order by the trial judge made October
26, 2009. The trial judge explained what next occurred in her evidentiary
ruling at Appendix A to her reasons for judgment (the "evidentiary
ruling") at paras. 3-5:

[3]        During
the hiatus, the defendants undertook surveillance of the plaintiff in two
periods, the first between October 30 and November 1, 2009 where investigation
operatives recorded the plaintiff’s activities while she was in the Lower
Mainland, (the "weekend video"); and the second between November 1
and November 6, 2009 when the operatives recorded the plaintiff’s activities
while she was holidaying in Mexico (the "Mexico video").

[4]        Counsel
for the defendants describes the Mexico video as showing the plaintiff sitting
on the beach and riding an ATV on the beach. He says that both videos will
assist me by providing a comparison of the plaintiff’s evidence and her
courtroom demeanour where she appears to be in pain and have difficulty moving,
with how she appears when she is preparing to go on vacation and how she
appears while on vacation.

[5]        The
defendants wish to call the operatives who observed the activity in the weekend
video, but do not intend to put actual video into evidence. They wish to call
eight or nine witnesses to address the plaintiff’s activities that are recorded
on the Mexico video and enter the video into evidence. The witnesses’ evidence
is intended to clarify items that may not be apparent on the video.

[10]        
Hinkson J.A. then,
at para. 7, referred to the objections that the plaintiff made to the
trial judge:

[7]        The
trial judge explained the objections of the plaintiff to the admission of the
evidence at paras. 6-8 of her evidentiary ruling:

[6]        The
plaintiff objects to the defendants calling the weekend video witnesses and to
the defendants calling the witnesses to the Mexico video, as well as putting
the Mexico video into evidence, because of their late disclosure. The Mexico
video and notes of the contents of the video were disclosed by the defence on
March 4, 2010, and the weekend video notes were disclosed on March 23, 2010 and
the weekend video on March 26, 2010.

[7]        The
basis of the plaintiff’s objection is that the defendants did not disclose the
existence of the videos on a supplementary list of documents as required under
R. 26(13) for both privileged and non-privileged documents, and thus the videos
are not admissible at trial under R. 24. The plaintiff’s second assertion is
that the defendants did not provide "background materials" which
include the letters of instruction, field notes, details about the
investigators, the investigators’ files, and cameras used to record the videos,
and the editing program used to prepare the DVD and similar information.

[8]        The
third point the plaintiff makes is that the late disclosure of the videos and
the backup material affects the plaintiff’s ability to prepare for trial and to
have the trial concluded in a timely way. She asserts that this week of trial
was anticipated to conclude the trial. If the evidence was admitted, the
plaintiff may have to be recalled, her medical experts may have to be recalled,
and she may have to call other witnesses, which would lengthen the trial and
probably necessitate scheduling further dates to conclude. She says the
prejudicial effect of allowing the videos into evidence outweighs the probative
value.

[11]        
Finally, the court
observed that the trial judge had referred to the earlier decision of Stone
v. Ellerman, 2009 BCCA 294, where the court, at paras. 30-31, addressed
the four factors that are applicable to the exercise of its discretion to admit
previously undisclosed evidence.

[12]        
Before I turn to
those four factors individually, I note that it is the party who seeks to
tender previously undisclosed evidence who bears the burden of persuasion: Kursar
v. BCCA Insurance Corporation, 2006 BCSC 586 at para. 18.

[13]        
Application of the
factors outlined in Houston supports the admission of the ICBC manual
excerpts that the plaintiff seeks to rely on. The first factor is whether the defendant
would suffer prejudice if the use of the documents is permitted. I accept that
there may be some such prejudice. Had the documents been disclosed earlier, Dr. Toor
may have had the opportunity to discuss these excerpts with counsel for ICBC
and he may have had occasion to reflect on their contents more fully. This is
not a case, however, where this evidence will lead to an adjournment or to the
need to call further witnesses. If Dr. Toor cannot speak to the documents,
he can say so.

[14]        
The second factor
is whether there is a reasonable explanation for the failure to disclose the
document in question. It is not clear to me that a party’s earlier lack of
awareness of a document would normally constitute a reasonable explanation for its
failure to disclose that document. The usual rule was described by the trial
judge in Houston, quoted in para. 16 of the Court of Appeal’s
decision, where the court said:

… In this
regard the trial judge set out at para. 11 of her evidentiary ruling the
following passage from Carol v. Gabriel (1997), 14 C.P.C. (4th) 376,
which was cited with approval by this Court in Stone at para. 32:

[9]        A party tendering a
previously undisclosed document must establish to the court’s satisfaction a
justification for the failure to abide by Rule 26(14). The question of whether
the opposite party will be prejudiced by the admission of the document is
always relevant but is not, in and of itself, decisive. Even in cases where no
prejudice will ensue from the admission in evidence of the document, it will be
excluded unless there is a reasonable justification for the earlier failure to
disclose it. To hold otherwise would be to dilute the disclosure obligation and
tempt counsel to refrain from disclosing in situations where they do not expect
any prejudice to result.

[15]        
In this case,
however, the defendant has also failed to produce ostensibly relevant documents
because it too was unaware of their existence. This is not, then, a case where
the plaintiff sought to withhold documents for a "strategic
advantage" or to effect "trial by ambush".

[16]        
The third factor is
whether excluding the use of the document would prevent the determination of
the relevant issue on its merits. It is not clear that a failure to introduce
these documents would "prevent" a determination of the relevant
issues on their merits. I do consider, however, that it would
"impede" such a determination. The documents are acknowledged to be
probative. They are expressed in plain English, unlike some of the concepts or
evidence that have been led from the expert engineers. I believe they would
assist the jury in its role.

[17]        
The fourth factor
is whether, in the circumstances of the case, the ends of justice require that
the use of the document be permitted. In addressing this question, the various
factors I have already described are relevant. The plaintiff has only recently
learned of and come into possession of the defendant’s own documents. The
evidence is probative. It is finite in nature. I consider the prejudice to the
defendant to be modest. I certainly consider the probative value of the
documents to outweigh their prejudicial effect.

[18]        
Finally, I accept
that I have not addressed the specific language of Rule 7-1(9). That language
appears to make the obligation to promptly amend the list of documents somewhat
more stringent than was the case under the previous Rule 26(13). I do not
consider, however, that those changes would have supplanted the conceptual
framework that was established by the Court of Appeal in Houston.

[19]        
Accordingly, it is
open to the plaintiff to rely on the two documents or excerpts in question.

“Voith J.”