Evidentiary Criteria Rule 9-7(5)

The evidence relied on in a Summary Trial hearing is by written evidence. This is likely the most important aspect of a summary trial application – the evidence that is adduced for presentation at the hearing. This evidence is going to be carefully reviewed by the Court to determine the following (which is not an exhaustive list):

1. Whether the application is appropriate or suitable for disposition under Rule 9-7;
2. Consideration of a Plaintiff being deprived of his/her right to a trial (or trial by jury);
3. Credibility of the parties;
4. Complexity of the issues;
5. Whether the evidence is helpful in resolving some of the issues and a finding of fact;
6. Cost effectiveness of conventional trial v. summary trial;
7. Delay or prejudice;
8. and assess whether there are necessary facts to form conclusions and grant an Order under Rule 9-7;

The evidence adduced in a summary trial hearing is gathered from a number of different sources.  These sources include affidavits, examination for discovery transcripts, admissions, pre-trial cross-examination, expert reports and, of course, cross-examination of the experts.  The type of evidence that is typically relied on is outlined under Rule 9-7 (5), which is enumerated below:

Evidence on Application

(5)          Unless the court otherwise orders, on a Summary Trial application, the applicant and each other party of record may tender evidence by any or all of the following:

1. affidavit;
2. by an answer, or part of an answer, to interrogatories;
3. any part of the evidence taken on an examination for discovery;
4. an admission under Rule 7-7; (Notice to Admit)
5. a report setting out the opinion of an expert; if
   1. the report conforms with Rule 11-6(1), or
   2. the court orders that the report is admissible even though it does not confirm with Rule 11-6 (1).

In Canadian Western Bank Leasing Inc. v. SSC Ventures (No. 98) Ltd., 2016 BCSC 223 (CanLII) this paragraph confirms the various sources of evidence that can be adduced:

Summary trial applicants and respondents may avail themselves to examinations for discovery (Rule 7-2), interrogatories (Rule 7-3), use of admissions (Rule 7-7), and expert reports pursuant to Rule 9-7(5). Of course, if they wish to tender any of this evidence at the summary trial, they must give proper notice to the other side pursuant to Rule 9-7 (10). In the case of expert reports, reasonable notice must be given to the other side: Cai v. Insurance Corporation of British Columbia, 2013 BCSC 2213 (CanLII) at para. 13.

In a recent decision Cannon v Al Perrett Enterprises Inc., 2018 BCSC 337 (CanLII), a summary trial proceeded on the issue of liability only.  This decision is helpful as it outlines the various types of evidence that was adduced at the hearing, and the Court’s analysis of this evidence.  It’s a great exercise to review such a case and pay attention to the Court’s comments on each of the evidence that was submitted.

In this case, the Court concluded that the plaintiff did not meet its burden of proof of proving that, on a balance of probabilities, the crash occurred as a result of the negligence of the Defendant, and therefore, the case was dismissed with costs to the Defendant.

Also, I would like to highlight the Court’s comments in Cannon as it pertains to the Plaintiff being deprived of a Jury Trial – because this may come up as an argument that a summary trial is not suitable for disposition and this case touched on this issue:

Being deprived of a right to a Jury Trial

In Cooper, the Plaintiff argued that he should not be deprived of his right to a trial by jury and referenced Gish v. Hooper Insurance and Financial Services Inc., 2010 BCSC 605 (CanLII), reversed on other grounds, 2011 BCCA 232 (CanLII).

The Court stated:

[20] Gish does not appear to stand for this proposition. In Gish, the defendant made a summary trial application to have a negligence claim dismissed. Madam Justice Ker reviewed the jurisprudence on the role a jury notice has on the issue of summary trial suitability and held (at para. 168) that:

…the filing of a jury notice is one of the factors to consider in assessing whether a matter is appropriate or suitable for determination under the summary trial procedure of Rule 18A. Thus the fact that the plaintiff would be deprived of a trial by jury is a factor that must be given consideration in this case.

[21]  However, Ker J. went on to state, in the same paragraph, that:

However, the rule contemplates that this [deprivation of a jury trial] may occur in appropriate cases. While the denial of a jury trial is a factor the court can consider, it is far from determinative and should be viewed in the light of other factors bearing on the test of comparative prejudice.

[22] I have given consideration to the denial of a jury trial on the issue of liability and am satisfied in light of all of the other factors I have outlined, it is not a factor to be given significant weight. Should the matter of damages need to be assessed, the plaintiff’s trial by jury is still preserved.

We will look at the various forms of evidence outlined in Rule 9-7 (5) in further posts on Case Law Corner.  These are also referenced as your “pre-trial tools” and a review of these documents referenced in Rule 9-7 (5) will be of some value to all of us.

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