More on Re-Opening an Injury Claim After Close of Trial


As I’ve previously discussed, BC Supreme Court Judges have discretion to re-open a trial after all parties closed their case.  This is so even after judgement is given (so long as a final order has not been entered).  Judges must exercise this discretion with caution but there is flexibility in doing so as was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (McIlvenna v. Viebig) the Plaintiff was injured in a 1995 incident when the bicycle he was riding collided with a motor vehicle driven by the defendant.  The Plaintiff was 7 years old at the time.  One of the matters at issue at trial was the Defendant’s ability to operate his vehicle safely.  In pre-trial discovery the Defendant gave evidence that his health was “like a grizzly bear” at the time of the crash.  When asked about having difficulty with sight he did not mention having any eye problems.
The trial ended and while both parties were waiting for the Court’s reasons the Plaintiff obtained the Defendant’s MSP printout.   This documented some health care visits with billings relating to “disorders of the optic nerve and visual pathways” as well as “retinal disorders or eye tests” not long before the collision.  On the strength of this the Plaintiff applied to re-open the trial so further evidence could be called addressing these issues.  The Defendant opposed arguing that the Plaintiff was not diligent enough in exploring these issues pre-trial.
Mr. Justice Sigurdson took a more practical approach and adjourned the application ordering that the defendant obtain and produce further medical records relating to these health care visits.  In demonstrating the flexibility trial judges have to ensure a fair trial occurs Mr. Justice Sigurdson provided the following useful reasons:

[14]         Mr. Battista in reply suggested an alternative approach to his motion, which I think is the just manner in which to deal with the application.  I have decided to adjourn the application of the plaintiff to re-open its case pending production of the records sought if they are available.  I think that it is relevant to the question of whether to adjourn the application pending such production that the plaintiff sought production of the MSP records prior to trial but they were unable to be produced until after the trial was heard.  Accordingly, I direct that the records of the doctors that I have described be produced to counsel for the defendant, Ms. Wright.  I direct that they produce the records for what appears to be the relevant period, 1994 to 1997, if they are available.  Once produced, Ms Wright will review them for relevancy and, if relevant, produce them to counsel for the plaintiff.  The plaintiff will pay forthwith the reasonable costs incurred in the production of these records by the doctors.  Given Mr. Viebig’s apparent mental condition at the present time, I make the order requiring production by the doctors without an authorization signed by him.  As this order for is made without prior service on the doctors involved, they will have liberty to apply on two days’ notice to the parties’ counsel to set aside the order.

[15]         For clarity, the doctors whose records are to be produced that relate to the defendant are for the doctors that I have referred to above that I listed from the MSP printout as well as those of Dr. Shier, the general practitioner for the defendant during that period of time.

[16]         Once the documents are produced to the defendant’s counsel and then to the plaintiff’s counsel, counsel for the plaintiff will forthwith advise counsel for the defendant if he intends to set down the adjourned application to re-open the case.  If not, I will then complete and issue my reasons for judgment after trial.  Because of the age of this matter and to ensure there is no further unnecessary delay, I ask the parties to fix a case management conference with me within the next six to eight weeks to report on the status of this matter.

bc injury law, calling a witness after closing your case, calling evidence after closing your case, Inherent Jurisdiction of the Court, McIlvenna v. Viebig, Mr. Justice Sigurdson, re-opening a trial

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ERIK
MAGRAKEN

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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