A party engaged in litigation in BC is generally required to disclose all materials in its possession, power, or control, which may prove or disprove a material fact. The existence of privileged items must be disclosed per Supreme Court Civil Rules 7-1(7) and Supreme Court Family Rules 9-1(4). Although their contents can be kept secret, privilege may be waived at any time, which can create some sticky issues.

In Stone v Ellerman, 2009 BCCA 294 (“Stone”), the plaintiff sought to rely on a “pain journal” to refresh her memory during direct examination. Plaintiff’s counsel argued the journal was properly listed as privileged, as it was included under a listing of “Notes and documents, correspondence, minutes of evidence, memoranda being the work product of plaintiff’s legal advisors.”

The journal was found to be improperly disclosed, but the trial judge allowed its use, saying (essentially) that in a motor vehicle case, the existence of a pain journal should be anticipated, and it was therefore in the interests of justice to allow the use of the journal.

One might consider Stone to be trial by ambush. The BC Court of Appeal (“BCCA”) would agree, and overturned the trial judge’s decision in a 2-to-1 decision. All three justices agreed that it was within the trial judge’s discretion to allow the use of improperly listed evidence at trial.

The use of discretion is governed by four factors (Stone at paras 30-31; see also Houston v Kine, 2011 BCCA 358 at para 12):

• whether the plaintiff would suffer prejudice if the use of the document was permitted;
• whether there was a reasonable explanation for the failure to disclose the document;
• whether excluding the use of the document would prevent the determination of the relevant issue on its merits; and
• whether, in the circumstances of the case, the ends of justice require that the use of the document be permitted.

In Cahoon v Brideaux, 2010 BCCA 228 (“Cahoon”), the defence sought to use a copy of mortgage documents to impeach the plaintiff. The documents were obtained after trial began, and were duly listed as privileged. The trial judge allowed the use of the mortgage documents on cross-examination, even though they had not been available before the direct examination was concluded. The BCCA agreed with the trial judge, stating that the prejudice to the plaintiff was minimized because the document had been discovered close to the time it was used, and because the plaintiff knew or ought to have known the contents of the plaintiff’s own mortgage documents (at para 39).

Dykeman v Porohowski, 2010 BCCA 36 was, as with Stone, a motor vehicle case. The plaintiff was cross-examined on her own Internet postings, which indicated her post-collision mobility. Like Stone, the postings were improperly listed; like Cahoon, the plaintiff ought to have been familiar with the contents of the documents; and unlike Cahoon, the defence discovered the documents well before trial.

Cross-examination on the postings was allowed at trial, but the BCCA overturned that decision because (1) the postings were improperly listed, and (2) no sufficient excuse was given as to why the documents were improperly disclosed (at paras 41, 42).

How can we conclude? First, it seems that trial by ambush in BC isn’t quite as dead as one might have assumed. Second, even where discretion may allow the use of privileged documents, a failure to list documents in accordance with the Rules could be fatal.