Sutherland v. Banman,


2008 BCSC 1194

Date: 200800903
Docket: M064082
Registry: Vancouver


Erin Sutherland



Brian James Banman


Before: Master Baker

Reasons for Judgment

Counsel for the Plaintiff:

K. Sadler

Counsel for the Defendant:

J. Adrian

Date and Place of Hearing:

August 7, 2008


Vancouver, B.C.


[1]                The defendant applies for certain records and for particulars.  One way or another counsel have resolved, for now, the requests for documents but the defence still seeks “particulars of the Plaintiff’s wage loss and loss of capacity claims.”[1] That part of the motion is brought pursuant to Rule 19.  The defence also wants costs.


[2]                Ms. Sutherland claims damages resulting from a collision that occurred October 14th, 2004.  Her statement of claim, filed October 12th, 2006, says that the event caused “….loss of earnings, past and prospective, loss of income earning capacity, loss of opportunity to earn income….”  A statement of defence, standard in form, was filed February 12th, 2007 and denied liability, loss, or causation, and alleged contributory negligence on Ms. Sutherland’s part.   There is no evidence of any demand for particulars before the filing of the statement defence, nor is there any indication of an intent on the part of the defence to amend its statement of defence.

[3]                Ms. Sutherland was examined for discovery September 12th, 2007.  At Q. 1316 of that examination Mr. Adrian asked for “….particulars of the wage-loss claim being advanced and loss of capacity claim” and then adjourned the examination.  Mr. Buckley was clear at that point (3:30 PM) that, in his view, the defence had had ample time to examine Ms. Sutherland and that, as such, he was not necessarily agreeing to further examinations, nor did he necessarily agree to the requests; his specific reply was “Oh, I’m not objecting to the number of requests.  It’s the nature of the requests”.  I take that to mean, at least, that the plaintiff has never agreed to provide a response regarding particulars of the wage loss or loss of capacity.


[4]                The defence, therefore, demands a response to Q. 1316, and does so by par. 2(b) of its motion, as above.  As with so many motions, numerous rules are cited as authority: “Rules 2, 19, 26, 51A, and 57”.  From this I infer that the defence, in seeking a response, relies on Rule 19.  Indeed, Rules 19(16) and (17) provide authority for particulars:

(16)      The court may order a party to deliver further and better particulars of a matter stated in a pleading.

(17)      Before applying to the court for particulars, a party shall demand them in writing from the other party.

[5]                It seems to me, however, on reflection, that the defence is not seeking particulars at all.  Particulars and their purpose, especially in relation to the discovery process, are helpfully discussed in Discovery Practise in British Columbia[2].  At par. 3.79 Mr. Harris advises counsel:

Review the pleadings to see whether they clearly define the issues between the parties.  If the pleadings are vague or imprecise, then particulars should be demanded under Rule 19 before proceeding to discovery.

(emphasis added)

This distinction was described in Hayes Heli-Log Services Ltd. et al. v. Acro Aerospace Inc. et al.[3] at par. 5:

Particulars will be ordered when it is necessary to delineate the issues between the parties.  It is different from discovery because particulars are not to be used to obtain information about how an issue will be proven.  The purpose of particulars is to inform the other side of the nature of the case it has to meet, to prevent surprise at trial, to enable the other side to determine what evidence is necessary to prepare for trial, to limit the generality of pleadings, to limit and decide issues for purposes of discovery and trial, and to tie the hands of the party providing particulars.

[6]                What the defence is seeking, clearly, is not particulars.  Pleadings are complete and, apparently, the defendants found the statement of claim sufficient under Rule 19 that it did not need further information or specificity in order to prepare and file a statement of defence.   It was only after the pleading stage and well into the discovery stage that Q. 1316 and its enquiry arose.

[7]                What the defence is seeking, then, is not particulars but evidence.  Properly conceived and expressed, the motion should seek relief under Rule 27 and the cases decided under that rule.  Were the motion presented in that way, the plaintiff would then know the real relief sought and would then be able to either agree, or to marshal her arguments in opposition.

[8]                Properly expressing the relief sought and the authority for it is no trifling thing; to misstate the authority for the relief can mislead the other party and can, therefore, result in refusal of the relief expressly sought by the motion.  The law has allowed some latitude in the expression of the authority for the relief sought in a motion.  In Braunizer v. Canadian Pacific Ltd.[4] At par. 7 the court said

I am of the view, and so hold, that it goes without saying that the term "shall specify any rule or other enactment relied upon" is directory and not mandatory. It follows, therefore, that the real test as to the validity of this interlocutory Notice of Motion is does it give the legal entities to whom it is directed reasonable notice of the application against them and what is being sought in that application.

In Borsato v. Basra[5], however, while approving of this statement of the law, the court found that it is possible, by basing a decision on authority not referenced in the notice of motion, to deprive a party of his or her right to be heard, by depriving that party of true notice of the application.  In this case, for the court to order a response to Q. 1316 is to grant relief addressed by Rule 27, and not Rule 19.

[9]                 Had the motion expressly relied on Rule 27 or the court’s authority to order discovery, the plaintiff may have responded differently.  For example, Mr. Buckley clearly, on the record, questioned the necessity of adjourning the discovery at 3:30, when there was still time to ask questions or request specific documents.  It is possible, faced with an application to compel a response to Q. 1316, the plaintiff would argue that the defence has had sufficient time and opportunity to discover her on the point.  Or she may argue that the question is too vague or speculative.  But at least she would be responding to a motion that specifically refers to, and directs her and her counsel to, evidence, and not pleading.

[10]            The motion is therefore dismissed.

[11]            Costs were argued at the motion: the defence’s view is that it received a satisfactory response regarding documents only after the motion was prepared, sent, filed, and set for hearing.  In the circumstances, however, and given that the balance of the motion has been dismissed, the parties will bear their own costs.

“Master D. Baker”

[1] Motion par. 2(b)

[2] Continuing Legal Education Society of British Columbia, second ed.

[3] 2006 BCSC 80

[4] (1995) 10 B.C.L.R. (3d) 195

[5] 2000 BCSC 1898