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Mistrial Declared After Late Record Production and Late Report in ICBC Injury Claim

Reasons for judgement were recently published by the BC Supreme Court, Vernon Registry,  declaring a mistrial in an ICBC injury claim proceeding before a jury.

In the recent case (Hilton v. Brink) the Plaintiff was involved in a collision and sued for damages.

The Plaintiff produced additional medical records close to trial resulting in an updated defense report addressing the Plaintiff’s injuries.  A trial was underway with a jury being selected and the Plaintiff objected to the late report being admitted.

The Court ruled that the report, with some corrections, would be admissible but doing so would prejudice the Plaintiff and a mistrial was the only sensible outcome.  In reaching this result, which nether party wanted, Mr. Justice Abrioux noted there was “blame to go around” and provided the following reasons:

[38]         I will now address the issue regarding the additional records which were provided to Dr. Pisesky well after his First Report.

[39]         Perhaps not surprisingly, both the plaintiff and the defendant blame each other for the situation which has developed. In my view there is more than enough blame to go around.

[40]         Without reviewing all the correspondence and what occurred between the parties, the plaintiff shares significant responsibility in my view, in light of the allegations of chronic pain, for not having obtained in a timely way documents from prior health care professionals, particularly for the two years or so prior to the Accident. Had the plaintiff provided an MSP printout commencing two years prior to the Accident, as had been requested as early as the fall of 2015 and on several occasions thereafter, the records obtained after March 31, 2017 would have been produced to the defence much earlier than that. This would also apply to Dr. Newmarch’s records which contained Dr. Oyler’s 2011 Consultation Report.

[41]         But the defence shares a significant part of the blame as well. When I review the correspondence, the requests made for records, and the plaintiff’s transparent replies, this was a case which cried out for a chambers application well before early July 2017, that is a month before the scheduled trial date.

[42]         There is also the fact that the plaintiff did refer at her examination for discovery in January 2016 to the difficulties she was having pre accident. It will be up to the trier of fact to determine if she concealed the true nature of her pre accident condition but that is certainly not for me to do on this application.

[43]         The defence does appear to have moved in an appropriate manner regarding Swirski interviews and the like, but only in June and July 2017. In my view the defendant should have been much more proactive at an earlier stage.

[44]         The primary relief sought by both parties would have draconian consequences on the other were it to be granted.

[45]          If I were to rule the Supplementary Report inadmissible, then the defence would only be able to rely on Dr. Pisesky’s First Report and the trier of fact would be misled as to Dr. Pisesky’s actual opinions based on the additional documentation provided to him in July 2017. It is not in the interests of justice for the trier of fact to be deliberately mislead. The practical effect would be that the defence would have no expert medical evidence in a case where the plaintiff who, as I understand it , has continued to work essentially full time since the Accident served a report at the 84 day deadline which assesses her loss of earning capacity arising from the injuries sustained in the Accident at $300,000.

[46]         On the other hand, if I admit the report into evidence in whole or in part, the plaintiff would not have the opportunity to properly address the opinions in the Supplementary Report which was only received on July 26, 2017.

[47]         There is also the fact that the plaintiff should, in my view, have the opportunity to consider obtaining a report from an orthopaedic surgeon, which is Dr. Pisesky’s field of expertise to deal with the issues raised in the Supplementary Report, including his review of what appears to be a CT scan report. This may well not be an issue which can be addressed by a physiatrist or a general practitioner, albeit one with the qualifications of Dr. Etheridge.

[48]         The plaintiff’s submission was that if the Supplementary Report were admitted in whole or in part that the trial should be adjourned. That cannot occur. The jury has been selected.

[49]         I appreciate that both the plaintiff and the defendant would prefer this trial to proceed, but in light of the positions they have taken on this application, I see no other alternative to a mistrial. This, in my view, will provide fairness to both parties. They will now have the opportunity to put before the trier of fact the evidence they consider necessary based on the recently obtained records.

[50]         A new trial will also provide the defence to address some obvious deficiencies in the Supplementary Report, in particular Dr. Pisesky’s statements regarding the plaintiff’s credibility.

[51]         I declare a mistrial.

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