IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140623

Docket: S114387

Registry:
Vancouver

Between:

Sienna Staaf

Plaintiff

And

Insurance
Corporation of British Columbia
and John Doe

Defendants

Before:
The Honourable Mr. Justice Burnyeat

Ruling on Affidavit Evidence

[1]            
Deena Foot, insurance adjustor, Vianne Bacchus, former adjuster with ICBC,
and Dr. Robert Stenstrom, emergency physician, were called as witnesses on
behalf of the Defendants.  In early April, each of them had sworn affidavits
that had been prepared by counsel for the Defendants.  The affidavits were
prepared and sworn prior to the decision of counsel for the Plaintiff that it would
be necessary for the three affiants to appear at this Trial relating to a motor
vehicle accident that occurred on September 27, 2007.

[2]            
The April 2, 2014 Affidavit of Ms. Bacchus, the April 3,
2014 Affidavit of Dr. Stenstrom, and the April 4, 2014 Affidavit of Ms. Foot
attached documents that had been prepared in the ordinary course of business
and each of the Affidavits contained the following paragraph:

I swear this affidavit on the
understanding that it will be used by the defendant ICBC to put a copy of
Exhibit ”A” hereto before the court without the necessity of my attending
at the trial of this matter and for no other or improper purpose.

[3]            
In her Affidavit, Ms. Foot stated that she was an adjuster for
ICBC, that she recorded a telephone claim relating to the accident on September 25,
2007, and that she then inputted some of the details relating to that
conversation into the computer records maintained by ICBC.  The computer
records were attached to her Affidavit.

[4]            
In his Affidavit, Dr. Stenstrom stated that he was the attending
emergency physician when Ms. Staaf was brought into the Emergency
Department at St. Paul’s.  Attached to his Affidavit was the “Emergency
Physician Assessment” form that was completed by various staff members at the
time that Ms. Staaf was brought to the St. Paul’s.

[5]            
In her Affidavit, Ms. Bacchus stated that she was previously
employed as an adjuster for ICBC, that Ms. Staaf and her boyfriend met
with her on September 26, 2007, that she prepared a one-page statement for
the signature of Ms. Staaf, and that she made notes in the ICBC computer
relating to the meeting.  The one-page statement and the notes made in the ICBC
computer were attached to the Affidavit of Ms. Bacchus.

DISCUSSION AND CASE AUTHORITIES

[6]            
The question which arises is the propriety of recording statements of witnesses
in sworn form before trial.  Statements in sworn form should not be taken.  The
consciences of witnesses at a trial are fettered by committing them in advance
to a story which is favourable to the client of the lawyer preparing the
affidavit.  To obtain a sworn affidavit or a statutory declaration not only
influences the evidence that a witness may give under oath at a trial but also
compromises accurate and truthful evidence at trial because a previous
statement may compromise the interest of the witness who wishes to testify
truthfully but the truth may be in conflict with the previously sworn
statement.  Before trial, the acceptable practice is to take statements from
witnesses but not arrange for those witnesses to swear affidavits or to make
statutory declarations.

[7]            
If testimony is to be given by affidavit, an application should be made
pursuant to Rule 12‑5(59) of the Rules of Court.  Subject to
the order of the Court to the contrary, that affidavit must be served at least
28 days prior to such an application being heard by the Court.  No such
application was made relating to the evidence of these three affiants.

[8]            
In Barry v. Cypost Corp., [2003] B.C.J. No. 2799
(S.C.), the following statements were made regarding the propriety of taking
affidavits rather than statements:

Fraser, J. [Pierre v. Lil’Wat Nation (1999), 61
B.C.L.R. (3d) 381 (B.C.S.C.)] raised with counsel his belief that it was
improper to record the statements of witnesses in sworn form before trial.
Fraser, J. then reviewed the decisions in Harvey v. Mount (1845),
14 L.J. Ch. 233; The Welland Election Case (1892) 20 S.C.R. 376; Northern
Navigation Co. v. Long (1905), 11 O.L.R. 230 (Ont. H.C.); Law v. Madden
(1909), 11 W.L.R. 6 (Man. K.B.); Johnston v. Reisel (1963), 40
D.L.R. (2d) 916 (Man. C.A.).

The decisions referred to by Fraser, J. set out very
strong policy reasons why sworn statements of witnesses should not be obtained
before trial and why unsworn recorded statements are to be strongly preferred.
In Harvey, Lord Langdale, M.R. dealt with a solicitor who had taken the
statement of a witness in the form of an affidavit and stated:

This gentleman went further than this [taking notes], and
obtained an affidavit, the effect of which was to entangle the conscience of
the witness. I think that was erroneous, and I hope it is not a
practice that will be followed by himself or any other solicitor…”. (at
p. 241)

In The Welland Election Case, Strong, J. referred
to the statement of Lord Langdale in Harvey and then stated that the
taking of a statutory declaration from a witness before trial was a
circumstance which would lead him to attach very little weight to the ultimate
testimony of the witness. In this regard, Strong, J. stated:

In vinculis as it were, his conscience bound by the
statutory declaration most improperly taken from him by the petitioner’s
solicitor. (at p. 392)

In Northern Navigation Co., Street, J. stated in
reference to the testimony of a witness that:

It was strongly urged against the credibility of his
testimony, that having made the statutory declaration of the 15th June, 1904,
he was in vinculis and was not free to vary from it except at the risk
of a prosecution for perjury. (at p. 237-8)

In Law, supra, Mathers, J. stated:

The object of the defendants in procuring the two
extra-judicial affidavits was, I am satisfied, to fetter the conscience of
these witnesses at the trial by having them committed in advance to a story
favourable to them. The defendants’ conduct in this respect was highly
reprehensible. The officers before whom these affidavits were taken … could
hardly be ignorant of the great impropriety of endeavouring to tie a witness by
an extra-judicial oath to an ex parte ante-trial statement for the purpose of
influencing his evidence when given under oath at the trial. (at p. 9)

In Johnston, the Court dealt with the statutory
declaration which an insurance adjuster had obtained from the plaintiff.
Monnin, J.A. on behalf of the Court commented:

The impropriety of attempting to fetter the conscience of a
party or a witness by securing his signature to an affidavit or a statutory
declaration (as distinguished from an ordinary statement) was commented upon by
Williams, C.J.Q.B., in Wilde v. Rausch, 55 Man. R. 369, [1947] 1 W.W.R.
865 (affirmed on appeal 55 Man. R. at p. 388, [1947] 2 W.W.R. 720 without
written reasons) where the authorities are set forth. The learned trial Judge,
although admitting the statutory declaration in evidence, commented upon the
impropriety to which I have referred (at pp. 918-9).

After considering those decisions, Fraser, J. in Pierre
then concluded:

… it is improper to have a prospective witness provide a
statement under oath, before trial, if there is no intention to use it as
primary evidence. This is because of the overriding interest of the system –
and of society – in having accurate and truthful evidence at trial. Binding a
witness to a statement made before trial by having it sworn compromises this
interest by setting up serious consequences for a witness who wishes to testify
truthfully, when the truth is in conflict with the statement. The threat to the
fact-finding process is the more insidious when it is understood that if the
testimony at trial is consistent with the sworn statement, the Court may never
learn of the existence of the statement. (at p. 388)

A more detailed consideration of the effect of admitting such
an affidavit was undertaken in Golden Capital Securities Ltd. v. Holmes
(2002) 95 B.C.L.R. (3d) 391 (B.C.S.C.) where E.R.A. Edwards, J. dealt with
an objection to a witness testifying on the basis that the witness had sworn an
affidavit embracing at least part of his anticipated testimony. After referring
to the decision in Pierre, Edwards, J. stated:

Affidavits are normally crafted by lawyers. They are not the
spontaneous statements of witnesses subject to immediate cross-examination.
When affidavits concern controversial matters they tend to present facts in a
light favourable to the party on whose behalf they were prepared. (at pp.
329-3)

This fettering of a witness’s conscience potentially
undermines the credibility of a witness’s testimony at trial.

A further consequence of the practice is that it potentially
raises a number of collateral issues about how the affidavit was prepared and
the extent to which the witness was helped to recall facts disclosed in the
affidavit.

If anything, the taking of the affidavit from Mr. Young
compromised the plaintiff’s case by opening avenues of inquiry on
cross-examination with the potential to undermine his credibility. (at p. 393)

After agreeing that the practice of taking an affidavit from
a prospective witness was to be disapproved, Edwards, J. concluded that
the disapproval should not necessarily manifest itself in the Court refusing to
hear the testimony. Accordingly, Edwards, J. concluded:

The circumstances of this case indicate the potential for
mischief if the court were to order that a witness who has sworn an affidavit
in anticipation of testifying could not then testify. The result would be that
a party could preclude a witness testifying by taking such an affidavit from
the witness.

The “ethical rule” applicable here is akin to the “rule”, if
there is one, that witnesses should not discuss their evidence with counsel
while under cross-examination. Both are intended to prevent the compromise of a
witness’s credibility. On the rare occasions where these situations arise, the
proper remedy cannot be that the court must disregard the whole of a witness’s
testimony. Rather, the court must weight these circumstances in the balance
when determining credibility and assigning weight to the witness’s testimony.
(at p. 393)

Other decisions in Canada follow the same practice as set out
by Edwards, J. in Golden Capital Securities. For instance, in Quest
Real Estate Ltd. v. R. & W. Holdings Ltd., [1986] M.J. No. 536
(Man. Q.B.) where statutory declarations had been signed after the action had
been commenced and there was an objection taken about whether the declarations
should be exhibits in the trial, Barkman, J. after referring to the
decisions in Wilde v. Rausch [1947] 1 W.W.R. 865 and Johnston, supra,
stated:

… although the practice of taking sworn statements from
parties or witnesses is improper and should be discouraged, the declarations
should be allowed as exhibits to support my decision as to the weight to be
accorded to the evidence of Mr. Davies. (at p. 7)

Despite the strong comments contained in Pierre and Golden
Capital Securities, counsel continue to fetter the consciences of witnesses
at trial by committing them in advance to a story which is favourable to the
clients of the lawyer preparing the affidavit or statutory declaration. While
an absolute prohibition against the admissibility of such affidavits or
statements or against that witness being called at trial would put an end to
the practice of obtaining such affidavits or declarations, such a blanket rule
would also allow a party to  preclude a witness testifying by taking such an
affidavit or declaration prior to trial.

(at paras. 9-19)

[9]            
Under the circumstances, it would have been appropriate for counsel for
the Defendants to apply for an order pursuant to Rule 12‑5(59) and,
if that order had been granted, for counsel for the Plaintiff to require those
witnesses to be called for cross-examination at trial pursuant to Rule 12‑5(61). 
That was not done.

[10]        
When it became apparent that three Affidavits had been sworn, counsel
for the Defendants was urged by me to make an application that the evidence of
the three be given by affidavit and counsel for the Plaintiff was urged to make
a subsequent application that the three witnesses be called to the Trial for
cross-examination.  That is what occurred and those orders were made.

[11]        
In the circumstances of this case, I am satisfied that the sworn
testimony of the three witnesses were in no way compromised by the assumption
that the truth of what they were saying was in conflict with the affidavits
that they had sworn.  First, the affidavits were sworn in order to place before
the Court the business records that would be relied upon by the Defendants. 
Second, the affidavits were prepared and sworn on the assumption that it would
then not be necessary for the three affiants to appear at the Trial.  Third,
the three witnesses were merely attaching business records and were not
providing direct observations that they had made relating to the accident. 
Fourth, the affidavits did not concern controversial matters.

[12]        
In the circumstances of this case, I attach no lesser weight to the
testimony at Trial of the three witnesses by virtue of the fact that they had
all sworn affidavits prior to testifying.  Because of the two Orders made and
in view of the nature of what was set out in their Affidavits, I am
satisfied that it is not appropriate to disregard the whole of their testimony.

__________ “Burnyeat
J.”_________
Burnyeat J.