Carfra Lawton LLP | Victoria BC
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A witness willing to attend an interview only in the presence of counsel does not amount to a refusal

The plaintiff in Cabezas v. HMTQ 2015 BCSC 449 was involved in a single motor vehicle accident and alleged that she lost control of her vehicle due to the slippery road conditions. The plaintiff sued the defendants claiming negligent highway maintenance.
The plaintiff pursuant to the rules applied for a pre-trial examination of the defendants’ employee. The defendants had disclosed records which indicated that the employee worked on the highway in the hours before the accident. Plaintiff’s counsel wrote directly to the employee to request an interview and received a written summary of the employee’s evidence through the defendants’ counsel. Further, defendants’ counsel advised plaintiff’s counsel that if the employee was still required for an interview, that it be arranged through counsel. Plaintiff’s counsel did not want to provide written questions to the employee and argued that the employee’s willingness to only interview with counsel present amounted to a refusal under the rules. Master Harper accepted the defendants’ submission that the fact that the employee had chosen to communicate through counsel did not amount to a refusal to give a responsive statement, given that the employee was agreeable to attending an interview in the presence of counsel.

Case law summary: Fareeha Qaiser