There has been much confusion in the legal community over the issue of witnesses and witness lists in civil cases. The issue is whether plaintiffs can call witnesses who are not in the plaintiffs’ trial brief has now been answered by Supreme Court Judge Steeves in the case 2016 BCSC 2038. Here is the answer:
- The Rules permit the amendment of a witness list before and during a trial: Rule 7-4(3).
- Leave is not generally required to add names to a witness list.
Rule 12-5(28) states that unless the court otherwise orders, a party must not at trial lead evidence from a witness unless that witness is listed in a witness list. Then Rule 7-4 (3) says that if a party who has provided a witness list or an amended witness list later learns that the list is inaccurate or incomplete, the party must promptly (a) amend the witness list,(b) file the amended witness list, and (c) serve a copy of the filed amended witness list on all parties of record.
Rule 12-2(3) requires that a trial brief be filed at least 28 days before trial which includes a list of witnesses the plaintiff intends to call and Rule 12-5(8) requires all witnesses to be named on a witness list. Rule 7-4 specifically describes the requirements of a witness list.
Rule 7-4 describes a continuing obligation to provide a witness summary. This must be done promptly, including any amendment, filing and service of the witness list. Therefore Rule 7-4 permits additions to a witness list which can amend a witness list in a previous trial brief.
 Overall I conclude that the Rules permit the amendment of a witness list during a trial. The plaintiffs have done that here and followed the requirements under R. 7-4(3). I also note that the additional witnesses were named during the plaintiffs’ case. In this lengthy trial, scale is somewhat difficult to determine, but it can be said that it is early on in the plaintiffs’ case. Certainly there is no issue of notice with respect to the evidence of these individuals. (Cambie Surgeries Corporation v. British Columbia (Attorney General),2016 BCSC 2038)
Judge Steeves also concluded that leave is not generally required to add names to a witness list. However, names added can be challenged on the usual basis of challenging evidence.
The defendant British Columbia opposed the calling of additional witnesses on the basis that they were not listed in the trial brief. Among other concerns, British Columbia points out the additional time the evidence of these witnesses will require on top of an already lengthy trial. They lost the application and the plaintiff was permitted to add another 36 witnesses.