As for the various lay witnesses not called, the plaintiff relied on Chabot v. Chaube, 2014 BCSC 300 at para. 137. In that case, I noted that contemporary disclosure rules, which are more expansive than in the past, had given parties equal opportunities to call witnesses who might assist the litigation position. There is no indication any of the lay witnesses not called were not available or unknown to the defendant. As for the 13 lay witnesses listed in the trial brief, counsel for the plaintiff advised that they were listed as a precaution; and that it was unrealistic to expect all those witnesses would or should have been called given the days available for conduct of the trial. The parties did not have enough days to complete the trial as it is. Shorter trials, not longer ones, should be encouraged. If parties are going to be met with a finding that an adverse inference ought to be drawn against them every time they fail to call a possibly relevant lay witness, trials would be unnecessarily longer, adjournments more common, and costs higher. Particularly now, where contact information for parties is exchanged, or their identity and contact information is well-known to both parties, it should be rare to see an adverse inference drawn from a failure to call a lay witness unless it is clear they could offer superior evidence, or particular evidence significantly relevant to a point in issue that no other witness could provide.
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