Can You Call a Witness After You Close Your Case?

The answer is yes and reasons for judgement were published today on the BC Supreme Court website discussing this area of the law.
In today’s case (MacEachern v. Rennie) the plaintiff suffered a severe brain injury when her head came into contact with a tractor trailer unit while she was walking or riding a bicycle along a highway in Surrey, BC.
The Plaintiff presented her case in court and called over 35 witnesses to discuss the crash and the extent of her accident related injuries.  After the Defendants opened their case the Plaintiff’s lawyers re-established contact with a witness that they had lost contact with.  The Plaintiff wished to re-open her case to call the witness before the end of trial.  The Defendants would not consent to this.  Mr. Justice Ehrcke ruled that it would be appropriate to permit the Plaintiff to call this witness.  In ordering so he summarized and applied the law as follows:
[8] I have not been referred to any authorities that are directly on point, that is, dealing with an application by the plaintiff in a civil case to re-open for the purpose of calling a missing witness during the course of the defence case. There are, however, numerous cases dealing with applications to re-open to call further evidence after the defence has concluded its case. Those cases make it clear that the court has a discretion to allow a party to re-open to adduce new evidence, even after judgment has been rendered, but before the order has been entered…

[10] The present case is neither an appeal nor is it a criminal matter. In British Columbia the leading case on re-opening a civil trial before the entry of the formal order is Clayton v. British American Securities Ltd., [1934] 49 B.C.R. 28 (C.A.). A majority of the five justice division who sat in that case rejected the dissenting view that the due diligence requirement must be applied as a strict rule. In support of the majority position Macdonald J.A. wrote at pp. 66 to 67:

My view has always been that the trial judge might resume the hearing of an action apart from rules until entry of judgment, but as it was vigorously combatted I have given it careful consideration. The point, as far as I know, has not been squarely decided; at least by any cases binding upon us. It is, I think, a salutary rule to leave unfettered discretion to the trial judge. He would of course discourage unwarranted attempts to bring forward new evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof. If the power is not exercised sparingly and with the greatest care fraud and abuse of the Court’s processes would likely result. Without that power however injustice might occur. If, e.g., a document should be discovered after pronouncement of judgment, but before entry, showing that the judgment was wrong and the trial judge was convinced of its authenticity no lack of diligence by a solicitor in not producing it earlier should serve to perpetuate an injustice. The prudent course is to permit the trial judge to exercise untrammelled discretion relying upon trained experience to prevent abuse, the fundamental consideration being that a miscarriage of justice does not occur.

There are reasons for rules governing the admission of evidence by an Appellate Court, not applicable to a trial judge. Hearing new evidence is a departure from its usual procedure and it is fitting that departures in ordinary practice should be limited by rules to prevent abuse. Entry of judgment may be merely a formality but it is necessary, that at some arbitrary point the jurisdiction of the trial judge should end. A vested right to a judgment is then obtained subject to a right to appeal and should not be lightly jeopardized. Before the gate is closed by entry a trial judge is in a better position to exercise discretion apart from rules than an Appellate Court. He knows the factors in the case that influenced his decision and can more readily determine the weight that should be given to new evidence offered. I may add that he might well be guided, although not bound by the rules referred to.

[11] On the material before me in the present case I am satisfied that the proposed new witness, Mr. Salter, has evidence to give that is clearly relevant to important issues and could affect the result. There is little, if any, prejudice to the defendants in allowing the plaintiff to re-open to call his evidence, because the application comes so early in the defence case. There is no suggestion that the defendants would have differently examined any of the witnesses they have so far called had Mr. Salter been called on May 14, prior to the close of the plaintiff’s case. In any event, the CN defendants must have known what evidence Mr. Salter might give, since unlike counsel for the plaintiff, they spoke to him months ago.

[12] I reject the defendants’ submission that the present application should be dismissed on the basis that plaintiff’s counsel failed to exercise due diligence in locating Mr. Salter. The standard of due diligence requires that serious efforts be made, but the standard is not one of perfection   Mr. Salter is a person of no fixed address who at the time of the accident was, like the plaintiff, living in a tent city. The difficulty this posed in finding him must be obvious. I am satisfied that plaintiff’s counsel took all reasonable steps to locate Mr. Salter, and they are not to be faulted for the fact that their efforts did not bear fruit prior to the close of the plaintiff’s case.

[13] Counsel for the CN defendants suggested that the plaintiff should have asked for an adjournment to locate Mr. Salter. I find that suggestion quite unrealistic given that plaintiff’s counsel had no reason to believe that their efforts would be successful if they only had a little more time.

[14] I am satisfied that the interests of justice require that the plaintiff be permitted to re-open her case to call Mr. Salter as a witness.

calling a plaintiff witness after defence case opened, calling a witness after closing your case, civil procedure, MacEachern v. Rennie, Mr. Justice Ehrcke

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Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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