Cabezas v. HMTQ

2015 BCSC 449 Cabezas v. HMTQ

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cabezas v. HMTQ, 2015 BCSC 449 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 Counsel for the Plaintiff: S. Turner Counsel for the Defendant, 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: C.B. Geiger Place and Dates of Hearing: Vancouver, B.C. February 6 and March 11, 2015 Place and Date of Judgment: Vancouver, B.C. March 24, 2015 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