In this unusual personal injury dental case(Alnoor v. Colgate-Palmolive Canada Inc.,2012 BCSC 1342) the claimant alleges that a defect in a toothbrush manufactured by the defendant caused her serious injury.  The claimant said that the toothbrush fractured in two places while she was brushing her teeth and she claims substantial damages for injuries she says she suffered as a result.
 The claimant asserted that the failure of Colgate to produce at trial its president pursuant to a notice to call him as an adverse witness, should result in judgment in her favour  pursuant to Rule 12‑5 of the Rules of Court. The Supreme Court judge found that the master was clearly wrong when he declined to set aside the adverse witness notice, and ordered that the notice be set aside.  The evidence claimant intended to elicit from the president of Colgate was not relevant to the issues in the lawsuit. Irrelevant evidence is not admissible. It is unnecessary evidence within the meaning of  Rule 12-5.
As the judge pointed out, “She has brought a negligence action against the defendant. She must establish that the defendant was negligent in the manufacture, design, and/or testing of the toothbrush such that it was defective, and that the defect caused the harm the plaintiff alleges she suffered when using it.”  Any acknowledgment by the president  that he is the person ultimately responsible for the defendant’s actions, including its recall policies, will not advance the plaintiff’s claim in any way.
With respect to the law generally regarding setting aside a Notice to Call an Adverse Witness  the judge summarized the current state of the common law relating to Rule 12-5,

[29]         The recent decision of Mr. Justice Butler in Dawson v. Tolko Industries Ltd., 2010 BCSC 1384, examines the meaning and effect of these provisions in detail. He observed at para. 18 that the Court is granted only limited jurisdiction to set aside an adverse witness notice. It is only where the evidence of the person is “unnecessary” that the Court can set aside the notice.

[30]         Further, as the Court noted at para. 19, it is only in a clear case that a judge should exercise his or her discretion to set aside a subpoena on the ground that the evidence is unnecessary. That is because the Court should be very cautious about second guessing the litigants concerning the benefits they may derive from calling a particular witness.

[31]         I agree with those comments. However, the Court is also granted discretion under subrule (24) which provides that where an application is made to strike an adverse witness notice, the Court may make any order it considers will further the objects of the rules.

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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