Hostile Adverse Witnesses

Hostile Adverse Witnesses

Jimmy Page of Led Zeppelin fame was called as a hostile adverse witness by the opposing counsel in the opening alleged plagiarism of “Stairway to Heaven” trial.

Rule 12-5 (19) describes an adverse witness aka hostile witness as a “party who is adverse in interest”. ie  Jimmy Page was a defendant but was called as a witness by the plaintiff’s lawyer who is suing him.

There is a general rule of evidence that a lawyer cannot attempt to impeach the credibility of his or her own witness in direct examination. You are not allowed to cross examine your own witness.

An exception on occasion arises where your witness makes testifies contrary to a previous statement or testimony, the party may direct the witnesse’s attention to the prior statement. The lawyer may seek an order that the witness is adverse aka hostile and with leave of the court, be allowed to cross examine that witness, particularly about the inconsistent testimony.

Rule 12-5 (21) states that 7 days notice before the date on which the attendance of the intended party is required,  of the intention to call the opposing party as an adverse witness ,must be given along with conduct money to attend.

Rule 12-5(22) allows no notice to be given of the intention to call a witness and seek to have them declared adverse in interest if the person is in attendance at the trial. Very often once the notice is given the opposing counsel as a matte of professional courtesy will undertake to call the party as a witness thus allowing cross examination of the witness in the usual fashion.

Rule 12-5 ( 26) provides that the party calling the witness as adverse is entitled to cross examine the witness on one or more issues.

Canada Inc. v Strother 2002 BCSC 1179 held that the obvious purpose of Rules 12-5 (19)-(22) is only to permit a party to call an adverse party witness to prove a fact or facts that could not otherwise be satisfactorily proven.

The subrules were not intended to give a party two ” kicks at the can” of cross examinations . Nor should the rule be used where an assurance has been given that the adverse party witness will be called to testify as part of the adverse party’s case.

Expert Witnesses

Expert witnesses

Once an expert becomes a witness, the expert is then presented to the court as truthful, reliable, knowledgeable and qualified.

Rule 11-2(1) makes it clear that an expert has a duty to assist the court and is not to be an advocate for any party.

The expert must certify that he or she was aware of that duty and has prepared the expert opinion and will testify in accordance with that duty.  Rule 11-2( 2)

In Vancouver Community College v Phillips , Barratt ( 1987) 20 BCLR (2d) 289 held that if the expert testifies as a witness, he or she may be required to produce all documents in their possession that are relevant to their opinion or their credibility.

However, if the expert does not testify and remains an advisor only, then privilege is maintained over the documents in their possession.

Witness Memory Difficulties and Expert Evidence

Witness Memory Difficulties and Expert Evidence

Witnesses in general on occasion have memory difficulties but where the memory is so lacking as to be unreliable, expert evidence may be admissable to show that a witness suffers from a mental disability which affects his or her ability to testify reliably.

The admissible evidence is not limited to the fact of the diagnosis, but extends to the facts and circumstances on which the diagnosis is based and the extent to which the credibility of the witness is affected .

Medical evidence will not be admissable however if the purpose is to test the credibility of the witness.

In Woolley v. College of Physicians and Surgeons of British Columbia, [1996] 6 W.W.R. 716, 19 B.C.L.R. (3d) 122 (S.C.), Justice Hall considered an appeal relating in part to the production of records. He found that the records sought related predominantly to credibility and character and, as such, did not need to be disclosed.

In R. v. Kliman (1996), 71 B.C.C.A. 241, 107 C.C.C. (3d) 549, in which the court found the trial judge had denied the appellant sufficient access to the records of the psychiatrist who had determined that the complainant had “a personality disorder-borderline” and “took liberties with facts and had an inability to distinguish what was factual from what was not” (para. 10).

R v Kliman followed  Toohey v. Metropolitan Police Commissioner, [1965] 1 All E.R. 506 at 512 (H.L.), in which Lord Pearce stated:
…
Human evidence shares the frailties of those who give it. It is subject to many cross-currents such as partiality, prejudice, self-interest and, above all, imagination and inaccuracy. Those are matters with which the jury, helped by cross-examination and commonsense, must do their best. But when a witness through physical (in which I include mental) disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal this vital hidden fact to them. If a witness purported to give evidence of something which he believed that he had seen at a distance of fifty yards, it must surely be possible to call the evidence of an oculist to the effect that the witness could not possibly see anything at a greater distance than twenty yards, or the evidence of a surgeon who had removed a cataract from which the witness was suffering at the material time and which would have prevented him from seeing what he thought he saw. So, too, must it be allowable to call medical evidence of mental illness which makes a witness incapable of giving reliable evidence, whether through the existence of delusions or otherwise.
…

Document Production Litigation

Document Production Litigation

Document production in litigation in BC is now under the new rules in effect since 2010 to initially only producing documents necessary to prove a material fact.

The new rule for production of documents was discussed in Biehl v Strang 2010 BCSC 1391.

Rule 7-1(1) states:
(1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period,
(a) prepare a list of documents in Form 22 that lists
(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by any party of record at trial to prove or disprove a material fact, and
(ii) all other documents to which the party intends to refer at trial, and
(b) serve the list on all parties of record.

The assumption appears to be that in many, if not most cases, such production will be sufficient. This change in scope is consistent with Rule 1-3(2) which provides:

Proportionality
(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to
(a) the amount involved in the proceeding,
(b) the importance of the issues in dispute, and
(c) the complexity of the proceeding.

[15] Rule 7-1 (14) does provide for wider disclosure upon application to the court including documents “relating to any or all matters in question in the action”.

The previous Rule 26(1) was broadly interpreted in accordance with the test described in Compagnie Financiere et Commerciale du Pacifique v. The Peruvian Guano Company (1882), 11 Q.B.D. 55 (C.A.), in which the Court of Appeal stated at 62-63:

I think it obvious from the use of these terms that the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action; and the practice with regard to insurance cases shews, that the Court never thought that the person making the affidavit would satisfy the duty imposed upon him by merely setting out such documents, as would be evidence to support or defeat any issue in the cause.
The doctrine seems to me to go farther than that and to go as far as the principle which I am about to lay down. It seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words “either directly or indirectly,” because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences.”

In other words, the requirement that the disclosure relate to a material fact limits the breadth of what is relevant.

[The authors of The Law of Evidence in Canada define relevance at para 2.35:
§2.35 A traditionally accepted definition of relevance is that in Sir J.F. Stephen’s A Digest of the Law of Evidence, where it is defined to mean:

… any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:
For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter.

Setting Aside a Default Judgement

Setting Aside a Default Judgement

Miracle Foods v. D&H Enterprises Ltd.  1979] B.C.J. No. 1965, 10 B.C.L.R. P 58. Establishes a four part test for setting aside a default judgement.

A default judgement is obtained when the plaintiff properly serves a defendant with a Petition or a Notice of Claim and the defendant fails to file a Response at the Court a Registry within the time allowed by the Surpeme Court rules.

The Test:

  1. That the applicant did not willfully or deliberately fail to enter an appearance or file a defence to the plaintiff’s claim,
  2. That the application to set aside the default judgment was made as soon as reasonably possible after obtaining knowledge of it, or explain any delay in bringing the application,
  3. That the applicant has a meritorious defence or at least a defence worthy of investigation, and
  4. Establish the foregoing to the satisfaction of the court through affidavit material. The court’s application of this test involves an exercise of discretion when assessing the weight given the test’s individual factors and reasonableness of the defendant’s explanation in each case.

Where a defendant has not received notice, the granting of default judgment becomes a failure of natural justice. The defendant has been deprived of their right to be heard and the default judgment is considered a nullity, which the defendant is entitled to have set aside as of right.

See Bache Halsey Stuart Shields Inc. v. Charles Estate [1982] B.C.J. No. 1757, 40 B.C.L.R. 103

Section 46 WESA and Lapsed Gifts

Section 46 WESA deals with the lapsed gifts in wills often caused by poor will drafting ,  failure by the parties to properly consider what the future may bring , or the beneficiary predeceasing, any of which results in   disappointed beneficiaries not receiving the intended gift.

Instead of  wording the will’s bequest of  “any real property that I own at the time of my death” , many will- drafters instead incorrectly state a particular address of a particular property, owned at the time of the will making,  but long sold before death.

The gift of real property  in that situation has lapsed simply because it ceased to exist.

Almost by definition, a lapsed gift results when a substantial change in circumstances occurs between the execution of the will and death, so that the gift has either failed or ceased to exist.

The lapsed gift often results from both poor drafting together with the simple fact that many people do not realistically ponder their aging and succession and just resort to avoidance.

Very often the beneficiary predeceases  the will- maker at which time the “anti-lapse rule of S 46 of WESA (Wills, Estates and Succession Act) ”  establishes a default scheme for determining alternative beneficiaries of a lapsed gift.

The Default Scheme of Section 46 WESA (Replacing  and altering the previous S. 29 Wills Act)

Section 46 applies to all gifts of any nature, whether specific in nature or residual but only if there is no contrary  intention stated in the will.

If the will- maker has named an alternate beneficiary for a gift that has lapsed, then in that event the alternate beneficiary has the first priority to inherit the gift, no mater what the reason for the failure of the gift.

If there was no alternative beneficiary of the gift , and the named beneficiary is  either a sibling, or as descendant of the will- maker, then the named beneficiary’s descendants will be entitled to the failed gift.

If there was no descendant of the will- maker , then the gift will go to the residual beneficiaries in  proportion to their named interests in the will.

When gifts cannot take effect

46 (I) If a gift in a will cannot take effect for any reason, including because a beneficiary dies before the will-maker, the property that is the subject of the gift must, subject to a contrary intention appearing in the will, be distributed according to the following priorities:

(a) to the alternative beneficiary of the gift, if any, named or described by the will-maker, whether the gift fails for a reason specifically contemplated by the will-maker or for any other reason;

(b) if the beneficiary was the brother, sister or a descendant of the will-maker, to their descendants, determined at the date of the will-maker’s death, in accordance with section 42(4) [meaning of particular words in a will];

(c)  to the surviving residuary beneficiaries, if any, named in the will, in proportion to their interests.

(2) If a gift cannot take effect because a beneficiary dies before the will-maker, subsection (I) applies whether the beneficiary’s death occurs before or after the will is made

The Bogus Expert

The Bogus Expert

A bogus expert was recently discussed in a sexual assault appeal,  JP v BG 2016 BCCA 91 , when the Court labelled a bogus expert report as a” fraud on the court”.

The so called expert was in fact a recipient of a “diploma mill” and had very little in the way of credibility or credentials.

THE COURT STATED:

11      This brings me to the primary bases on which B.G. seeks an extension of time to appeal the family case; that there has been a fraud committed on the court by a witness called by the mother, Claire R. Reeves. Despite objection by the Province and B.G., Claire Reeves was permitted to give expert opinion evidence in the area of child sexual abuse and incest. Her evidence was lengthy, and heard over two days. She also filed a written report.

12      Claire Reeves has not responded to the allegations made, although counsel for J.P. has spoken with her. Thus, the comments I make about her relate to allegations and are not findings of fact.

13      She filed an expert report, and presented herself with qualifications that included a Doctorate in Clinical Counselling, Masters of Science in Clinical Psychology, Bachelor of Science in Family Mediation, and a Bachelor of Arts in Journalism.

14      Counsel for B.G. has examined these qualifications and discovered that they all appear to be online degrees obtained from unaccredited organizations, referred to colloquially as “diploma mills”. Other evidence was led to demonstrate that Claire Reeves was allegedly not truthful with respect to her employment, expertise and experience in court. For example, despite saying that she had testified in multiple cases in the United States, she does not appear on a United States expert witness data base, nor does she appear in any case after an extensive search conducted by a representative of LexisNexis. In other words, there is strong evidence to support the allegation that a fraud has been committed on the court.

15      In addition, B.G. submits, Reeves based much of her opinion on a theory called “child sexual abuse accommodation syndrome”, popularized in the 1980’s and 1990’s. This theory suggests that certain behaviours of children are consistent with sexual abuse. This theory was discredited as a diagnostic tool by the doctor who advanced the theory in the first place, and has not been admitted into courts as proof of sexual assault for decades. For example, see R. v. K. (A.) (1999), 45 O.R. (3d) 641 (Ont. C.A.) at paras. 61-62, 86, 125-129.

At paragraph 29 Bennett JA labelled such bogus expert evidence s a “ fraud of the court”.

Joint Venture Agreement

Joint Venture Agreement

Leontowicz Estate v Bakus 2016 BCSC 601 dealt with the validity of a trust relating to mining stakes where it was argued that the deceased had entered into a Joint Venture Agreement that must be based on whether or not there is a binding contract between the venturers.

The court reviewed the evidence and documents and concluded that the deceased in creating the trust did not intend to create a Joint Venture Agreement and discussed the law relating to same :

76      I reject the defendant’s proposition that the Deceased, Bakus and Dahl intended the Trust Declarations as joint venture agreements. A trust declaration may form part of a joint venture agreement, but it must itself constitute a valid trust and satisfy all the essential elements summarized earlier in these Reasons.
77      The invalid Trust Declarations in this case purported to create bare trusts. They do not declare or contain the terms necessary to constitute an enforceable joint venture. The actions Bakus undertook both with respect to the Deceased’s mineral claims and to his own did not represent performance of the terms of a joint venture agreement. The Trust Declarations did not authorize them and there is no joint venture agreement to be found that does so, either in writing or clearly inferable from the parties’ conduct, or from the surrounding circumstances.
78      The subject matter of the venture remains at best ill-defined and vague. In other words, if there was a form of contract, it would be void for uncertainty of essential terms. There is no expressed right of mutual control or management of the enterprise. There is no provision for a right of accounting or reimbursement for extraordinary contributions made to the venture of the kind Bakus said he had made and for which he should be compensated. The purported assets of the alleged joint venture are at best uncertain.

What is a Joint Venture Agreement?

[31] … Although its existence depends on the facts and circumstances of each particular case, and while no definite rules have been promulgated that apply generally to all situations … the following factors must be present [for a valid joint venture]:
(a) A contribution by the parties of money, property, effort, knowledge, skill or other asset to a common undertaking;
(b) A joint property interest in the subject matter of the venture;
(c) A right of mutual control or management of the enterprise;
(d) Expectation of profit, or the presence of “adventure”, as it is sometimes called;
(e) A right to participate in the profits;
(f) Most usually, limitation of the objective to a single undertaking or ad hoc enterprise.
75      To be valid, the joint venture agreement must have at its foundation a binding contract among the partners or joint venturers which contains all the essential terms of the agreement between the parties: Blue Line Hockey Acquisition Co., Inc. v. Orca Bay Hockey Limited Partnership, 2009 BCCA 34[Blue Line] at para. 10; see also, Palmar Properties Inc. v. JEL Investments Ltd., at paras. 37-41. In Blue Line, the parties’ intention to form a joint venture agreement was found in the express terms of the joint venture agreement and the trust declaration, which the defendants did not dispute were validly executed.

Court Costs Summarized

Court Costs Summarized

LeClair v Mibrella Inc. 2011 BCSC 533  summarized the law of court costs  and it  was recently re cited in Parmar Estate v Tiwari 2016 BCSC 540:

  1. costs represent an important instrument by which courts can either promote or, conversely, sanction given conduct. Rule 14-1(9) provides one means of achieving this overarching object;
  2. the onus is on the person who seeks to displace the usual rule that costs follow the event though Rule 14-1(9) conveys a discretion to the court, that discretion is to be exercised in a principled way;
  3. the exercise of discretion must be connected to the conduct or misconduct of a party in the litigation;
  4. the conduct in question can arise either at trial or at some earlier stage in the proceeding
  5. costs are not to be used to sanction a party whose evidence was exaggerated or who gave evidence in error; and
  6. where a court concludes that a party has intentionally or deliberately sought to mislead the court, that party will normally be deprived of costs.

Apportionment of Court Costs

Mawdsley v Meshen 2011 BCSC 923 , at para. 44:

[44] An essential principle articulated by the Court of Appeal in Worthington and Sutherland, and recently endorsed in Lewis v. Lehigh Northwest Cement Limited, 2009 BCCA 424, at para. 36, is that because apportionment is an exception to the usual rule, it is to be confined to relatively rare cases. Consequently, it would be overly simplistic to approach apportionment as being a given in all cases where the party who has been successful overall has lost one or more issues, even discrete issues, in the proceeding. There is no automatic entitlement to apportionment despite the aforesaid outcome. At the end of the day, apportionment is meant to achieve fairness in the particular circumstances. For that reason, care must be taken so that an apportionment does not result in an unintended or plainly unfair set-off of costs to a plaintiff who has enjoyed substantial success. Of necessity, apportionment is a matter of judicial discretion.

Expert Reports and Opinions

Expert Reports and Opinions

Many estate litigation cases involve the necessity of obtaining an expert opinion in the form of a written  report that summarizes the evidence that  the expert  will  and opinion give at trial. The expert must set out the factual assumptions and documents that were relied upon in forming the written expert report and opinion.

Expert reports are what is known in law as “opinion evidence and may contain hearsay evidence as per the following guidelines”

The Court of Appeal summarized the correct approach for dealing with opinion evidence of this type in Mazur v. Lucas, 2010 BCCA 473 (B.C. C.A.).

When deciding what weight to place on expert evidence, the trier of fact must assess the extent to which the expert relied on hearsay evidence and factual assumptions, and the reliability of those hearsay statements and assumptions. Madam Justice Garson for the Court summarized this as follows:

[40] From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsay evidence as follows:
  • An expert witness may rely on a variety of sources and resources in opining on the question posed to him. These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others — this list is not exhaustive. (See Bryant, The Law of Evidence in Canada, at 834-835)
  • An expert may rely on hearsay. One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report. Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.
  • The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence. The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence. Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.
  • The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.