AVOIDING TRIAL BY AMBUSH

The problem? A 15-day family law trial with the claimant calling 21 witnesses. The answer? A trial management conference to discuss the trial process and review evidentiary issues.

 In Bartch v. Bartch 2017 BCSC 1625 the parties attended such a conference in January 2017, where the presiding judge ordered the parties to exchange “will-say” statements and contact information for the witnesses listed in their respective trial briefs, to be provided no later than 3 months from the date of the order.

In April 2017 the claimant provided two letters to the respondent which the chambers judge described as “brief and nebulous statements on the general topics” the 21 witnesses would testify to. Six months months after the order the claimant provided witness contact information. 

The respondent brought an application seeking compliance with Rule 14-3 of the Supreme Court Family Rules, ss. 9(g):

“(9)  The judge or master presiding at a trial management conference may consider the following and, without limiting the ability of the trial judge or master to make other orders at trial, may, whether or not on the application of a party, make orders respecting one or more of the following:      …

            (g)  directing that a party provide a summary of the evidence that the party expects one or more of the party’s witnesses will give at trial;”

The claimant argued that while the will-say letters were brief, placed in the context of what the respondent was already aware, she had complied with the court’s order. She cited a human rights case, Pegura and Forster v. School District No, 36, 2004 BCHRT 170, where the adjudicator said: 

    “. . . it is not sufficient to focus merely on the content of the will-say statements. Rather, it is necessary to view the will-say statements in the context of all the information that has passed between the parties.”

  Counsel also suggested that the respondent had access to all the witnesses and could easily obtain their evidence from them directly. Further, she submitted that more detailed statements were cost prohibitive.

The court determined that the statements were not sufficient as they were intended to be a summary of the “substance” of what a witness will say, to ensure a fair, efficient process and to prevent ambush at trial. The court noted that hundreds of pages of detail was not required, but a summary of the evidence was. 

In Ma v. Liu 2017 BCSC. the parties’ family trial concerned the ownership of the parties’ marital home, where the claimant and several of her witnesses testified that it was owned by Ma’s father, a fact disputed by the respondent. 

In closing submissions, the respondent argued that the claimant’s mother, Hui  Xiao’s evidence was not credible as it included matters that were not in her will-say statement. The court observed that she testified in Mandarin, using an interpreter, but  her evidence was not shaken on cross-examination. 

The court found that the will-say statement was “adequate thought not exemplary”, and any deficiency was attributable to Ma’s counsel, rather than a credibility problem. The judge remarked that Hui Xiao did not have the opportunity to review her statement before it was delivered to the respondent and would not have understood a document written in English in any event. 

And what about witnesses testifying who have not been disclosed on a party’s witness list? In Fu v. Zhu 2017 BCSC 749 the court summarized four factors to consider when exercising discretion to allow a party to call a witness not previously disclosed:

1. Will there be prejudice to the opposing party due to lack of notice?

• Is there a reasonable explanation for failure to give notice?

• Will precluding the witness to give evidence prevent a determination of an issue on the merits?

• Should the party be permitted to call the witness in the interests of justice? 

The case of Fu v. Zhu was cited by the court in G.K.D. v C.S.D, 2021 BCSC 367 where the parties were engaged in 14 days of trial to deal with parenting issues, property and support.  The respondent‘s witness listed indicated that only he and his brother would testify. In the midst of his final witness’ evidence, the respondent sought leave to have S., an additional witness give evidence on his behalf. 

S. had been referred to by the claimant in her case and was featured in a private investigator’s report that was in evidence. The court stated the nothing unanticipated was learned about S.’s role or conduct during the trial and the claimant’s evidence regarding S. was not challenged in cross-examination. 

Leave was denied with the judge stating that S.’s testimony was not required to address the merits of the issues, and granting leave at such a late point in the trial would have resulted in procedural unfairness to the claimant and delayed the trial. 

With the scarcity of court time, our court rules that govern process and procedure take on greater importance. There is no place for the element of surprise in litigation and “gotcha” moments are only found in Hollywood movies.