IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150324

Docket: M126699

Registry:
Vancouver Registry

Between:

Claudina (Claudia)
Del Carmen Cabezas

Plaintiff

And

Her Majesty the
Queen in Right of the Province of British Columbia, as represented by the
Ministry of Transportation and Infrastructure,
Capilano Highway Services Company, A General Partnership,
Hilbar Enterprises Inc. d.b.a. Capilano Highway Services Company,
Rockline Construction Ltd. d.b.a. Capilano Highway Services Company

Defendants

Before:
Master Harper

Reasons for Judgment

I.                
introduction

[1]            
The plaintiff alleges that she was injured in a single vehicle accident
on November 26, 2010 when she lost control of her vehicle due to slippery
road conditions. The accident took place on Highway 101 near Trout Lake outside
Sechelt, B.C. The defendants, Capilano Highway Services Company, A General
Partnership, Hilbar Enterprises Inc. d.b.a. Capilano Highway Services Company,
Rockline Construction Ltd. d.b.a. Capilano Highway Services Company (the “Capilano
defendants”) were responsible for highway maintenance in the area where the
accident occurred. The Capilano defendants employed Robert Colville and Lewis
Cocker as highway maintenance workers. The plaintiff alleges that the accident
was caused by the negligence of the Capilano defendants. The Capilano defendants
deny liability and say that they complied with their duties. The road
conditions as well as the actions of the highway maintenance workers in the
hours leading up to the accident are issues for determination in the
litigation.

[2]            
The plaintiff applies for a pre-trial examination of Mr. Colville
pursuant to Rule 7-5(1) of the Supreme Court Civil Rules and for an
order that the Capilano defendants provide to counsel for the plaintiff the
full employment file of its former employee Mr. Cocker, pursuant to Rule
7-1(10), (11) and (13).

A.             
Pre-trial examination of a Witness

[3]            
From the records disclosed by the Capilano defendants it appears that Mr. Colville
worked on the highway in the hours before the accident. One of the issues in
this action is what caused the plaintiff’s vehicle to leave the highway.

[4]            
Rule 7-5(1) provides as follows:

(1) If a person who is not a party of record to an action may
have material evidence relating to a matter in question in the action, the
court may:

(a) order that
the person be examined on oath on the matters in question in the action, and

(b) either before or after the
examination, order that the examining party pay reasonable lawyer’s costs of
the person relating to the application and the examination.

[5]            
Counsel for the plaintiff wrote to Mr. Colville on September 23,
2014 as follows:

We would like to interview you
about any knowledge you have that is related to the above-noted civil
litigation. In case you are unaware, this civil litigation relates to a single
vehicle accident on Highway 101 on the Sunshine Coast. You were working for
Capilano Highway Services at that time.

 The letter goes on to request that Mr. Colville
contact a colleague of counsel for the plaintiff to schedule an interview. Counsel
for the plaintiff wrote Mr. Colville again October 10, 2014 to
request the interview.

[6]            
In a letter dated December 9, 2014, counsel for the Capilano
defendants provided a summary of the evidence Mr. Colville was expected to
give should the matter proceed to trial. She stated further: “to the extent
that you still wish to speak to Mr. Colville, he has asked that this be
arranged through us and that we be present.”

[7]            
The plaintiff argues that a pre-trial examination of Mr. Colville
is warranted because he may possess material information in related to a matter
in question in the action.

[8]            
Counsel for the plaintiff says he does not want to give Mr. Colville
a list of questions to answer. He says that Mr. Colville has refused to
talk to him which establishes the requirement under Rule 7-5(3)(c)(i) that Mr. Colville
“has refused or neglected on request by the applicant to give a responsive
statement, either orally or in writing, relating to the witness’ knowledge of
the matters in question”.

[9]            
The Capilano defendants take the position that Mr. Colville has not
refused any request by the plaintiff to give a responsive statement, rather, he
simply requests that the interview take place in the presence of counsel for
the Capilano defendants.

[10]        
Counsel for the plaintiff takes the further position that the Capilano
defendants have no standing to object to the application for the pre-trial
examination of Mr. Colville. However, I point out that an application
for an order for a pre-trial examination must be served on the proposed witness
pursuant to Rule 7-5(4). There is no evidence before me that Mr. Colville
was personally served with the application materials and I conclude from
the lack of objection by counsel for the Capilano defendants that she is
appearing on behalf of Mr. Colville at the hearing of this application on his
behalf as well as on behalf of the Capilano defendants. This is not surprising,
given that Mr. Colville is employed by the Capilano defendants.

B.             
Discussion

[11]        
Rule 7-5 sets out a protocol which must be followed before an
application for an order for a pre-trial examination of a witness can be made.
The applicant must establish that the proposed witness has refused or neglected
on request by the applicant to give a responsive statement either orally or in
writing relating to the witness’ knowledge of the matter in question or has
given conflicting statements (Rule 7-5(3)(c)(i) and (ii)).

[12]        
The fact that the witness has chosen to communicate through counsel does
not amount to a refusal to give a responsive statement (Rintoul v. Granger,
2008 BCSC 1852 at para. 24).

[13]        
 Mr. Colville is agreeable to attending an interview in the
presence of counsel.

C.             
Decision

[14]        
Mr. Colville has not refused or neglected to give a responsive
statement relating to his knowledge of the matters in question. He simply
requests that the interview take place in the presence of counsel. The
plaintiff therefore has not met the requirements of Rule 7-5. The application
is dismissed.

II.              
Production of the employment file of mr. cocker

[15]        
Rule 7-1 sets out the protocol that must be followed before an
application for the production of documents can be successful.

[16]        
The Capilano defendants did not list Mr. Cocker’s employment file
in their list of documents. In response, the plaintiff made a written demand for
disclosure of the employment file. The basis for a demand for disclosure of
additional documents is that they “relate to any or all matters in question in
the action” (Rule 7-1(11)).

[17]        
Counsel for the plaintiff stated the rationale for the request as
follows:

This may assist us in locating
him but more importantly this may speak to the issue of his credibility
generally which is material to the issue of liability. We note from the company
log book his apparent observations at the scene contradicts to those of the
investigating officer. And, the words “I am fat” noted on Mr. Colville’s
time card for November 26, 2010, which may have been authored by Mr. Cocker,
suggested the two gentlemen may not have been taking their duties seriously on
the night of the accident.

[18]        
In submissions, counsel for the plaintiff argued that the employment
file was sought to establish Mr. Cocker’s training, to find out whether he
had ever been reprimanded, to obtain his performance reviews and evaluations, and
to find out whether the personal reasons for his resignation affected his
ability to do a good job. The plaintiff says that Mr. Cocker’s employment
file should be produced because Mr. Cocker’s credibility is at issue in
terms of what he was doing the night of the accident, but more broadly, how
reliable he was as an employee. He says production of the employment file would
assist in assessing Mr. Cocker’s credibility.  He argues that Rule 7-1(11)
provides for a broader scope of discovery [documents which “relate to any or
all matters in question in the action”] than Rule 7-1(1) [documents that could “be
used by any party to prove or disprove a material fact”].

[19]        
In response to the demand for the production of Mr. Cocker’s employment
file, counsel for the Capilano defendants responded as required pursuant to
Rule 7-1(12) that Mr. Cocker’s employment file was not relevant and,
further, that counsel for the plaintiff had already been in contact with Mr. Cocker.
I infer from this response that it was the position of the Capilano
defendants that plaintiff’s counsel could obtain whatever information he wanted
about Mr. Cocker’s employment history directly from him, should Mr. Cocker
choose to provide it. Counsel for the plaintiff has already interviewed Mr. Cocker
and obtained a statement from him.

A.             
Discussion

[20]        
The question is: do the documents in Mr. Cocker’s employment file
relate to any matter in question in the action?

[21]        
Counsel for the plaintiff says that Mr. Cocker’s decisions and
actions the night of the accident are essential to the action since he was the
operator salting in the area of the accident. He says further that Mr. Cocker
had intimate knowledge of the highway maintenance that night and that he is
critical to the liability issue. I agree that Mr. Cocker would be an
important witness at trial and that his actions at the time in and around the
accident relate to matters in question in the action. Counsel for the plaintiff
understandably wishes to obtain information about Mr. Cocker.

[22]        
However, in my view, the foundation provided for the production of Mr. Cocker’s
employment file is weak. There is no evidence that the plaintiff has requested
any information directly from Mr. Cocker about his employment history,
training or experience. Counsel for the plaintiff can ask Mr. Cocker about
his employment history and his actions on the day and evening of the accident. 
Counsel for the plaintiff could have asked the representative of the Capilano
defendants at his examination for discovery about Mr. Cocker’s training
and experience.

[23]        
This application amounts to the proverbial “fishing expedition”.

B.             
Decision

[24]        
The application for the production of Mr. Cocker’s employment file
is dismissed.

III. Summary

[25]        
Both applications are dismissed. Costs will be in the cause.

__________ “Master
Harper”__________
Master Harper