Witness

How BC law treats it

In BC Supreme Court actions, most evidence at trial comes from witnesses who testify in person under oath or affirmation and are cross-examined. Evidence on applications is usually given by affidavit, a sworn written statement that must meet Rule 22-2 of the Supreme Court Civil Rules, BC Reg 168/2009. A party who needs an unwilling person at trial serves a subpoena. Lying under oath is perjury under s. 131 of the Criminal Code. BC has no US-style discovery deposition as of right. Parties to the action are examined under oath at an examination for discovery. A non-party who may have material evidence and has refused to give a responsive statement may be examined before trial by court order under Rule 7-5. Separately, Rule 7-8 allows a witness to be examined by deposition, by consent or court order, for use as evidence at trial, for example where the witness will be unavailable. Expert witnesses are different from ordinary witnesses. They may give opinion evidence, but only through a signed report that complies with Rule 11-6 and is served within the deadlines in Part 11. Under Rule 11-2, the expert must certify in the report that their duty is to assist the court, not to advocate for the party who hired them. The Evidence Act, RSBC 1996, c 124 also governs competence of witnesses and the use of certain documents in evidence. Outside court, a witness also signs to confirm that they saw someone sign a document. Many documents need no witness, but a transfer or mortgage registered under the Land Title Act must be witnessed by an officer, such as a lawyer or notary public, under Part 5 of that Act.

What it means for your business

In a commercial dispute, the case is often won or lost on witnesses: the employee who negotiated the deal, the site supervisor, the bookkeeper. Business owners should identify key witnesses early, keep in touch with former employees and preserve their documents and notes. Weak or uncooperative witnesses can change the value of a claim. For transactions, using the wrong witness, or no witness, can delay registration of land documents or invite a later challenge to a signature. Example: A BC contractor suing for unpaid invoices subpoenas its former project manager, who now works for a competitor, to testify at trial about change orders the owner approved verbally on site.

Risks and common mistakes

Assuming a friendly former employee will attend trial voluntarily instead of serving a subpoena in time. Calling a witness to give opinion evidence without serving a Rule 11-6 compliant expert report. Coaching a witness on what to say, which damages credibility and can amount to misconduct. Having a spouse or business partner witness a land transfer that must be witnessed by a lawyer or notary. Losing contact with key witnesses who leave the company before the dispute reaches discovery.