Tag: calling a witness after closing your case

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.

It Ain't Over Till It's Over: Fresh Evidence After Judgement


As I’ve previoulsy discussed, a trial in the BC Supreme Court isn’t over until a formal Court Order is entered.  In limited circumstances a trial can be re-opened after the close of a case.  This can apply even after a Court gives judgement in a lawsuit as was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Graham v. Galaxie Signs Ltd.) The Plaintiff was an employee of the Defendant.  He claimed he was unlawfully dismissed from his employment and sued for damages.  His lawsuit appeared to succeed and in April, 2010 the BC Supreme Court gave judgement ordering that the Defendant pay the Plaintiff just over $44,000.
Prior to entering a Court order, the Defendant obtained further evidence and alleged that this new evidence “suggests that the plaintiff was less then forthcoming both at discovery and at trial about efforts he made to earn income during the relevant period of notice“.  The Defendant asked the Court to re-open the trial and to permit further evidence to be led.  Mr. Justice Groves agreed to take this unusual step and went further and ordered that the Plaintiff submit to another exaximation for discovery prior to having the trial resume.  In reaching this decision the Court provided the following useful reasons:

[6]             In Zhu v. Li, 2007 BCSC 1467, 2007 CarswellBC 2367 [Zhu], leave to appeal to British Columbia Court of Appeal dismissed, 2008 BCCA 239, 2008 CarswellBC 1153, this court stated at para. 20 that the following principles apply to an application to re-open a trial to adduce fresh evidence:

1.               Prior to the entry of the formal order, a trial judge has a wide discretion to re-open the trial to hear new evidence.

2.               This discretion should be exercised sparingly and with the greatest care so as to prevent fraud and abuse of the court’s process.

3.               The onus is on the applicant to show first that a miscarriage of justice would probably occur if the trial is not re-opened and second that the new evidence would probably change the result.

4.               The credibility of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result.

5.               Although the question of whether the evidence could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would probably occur if the trial is not re-opened.

[7]             In regards to the test set out in the Zhu case, it is of note here that the formal order has not yet been entered.

[8]             Additionally, the evidence appears credible.  There are before me emails as well as numerous documents that appear to be authored by the plaintiff during the notice period and related to the construction of the Cap-It sign.  All of these documents suggest that the plaintiff was working on the Cap-It sign.  Additionally, the affidavit of the plaintiff does not dispute the documentary evidence provided in the affidavit of John LeComte but states in his defence that he did not receive remuneration for the work that the documents confirm he did.

[9]             I find that the proposed fresh evidence is credible and tends to show that a miscarriage of justice would probably occur if the trial is not re-opened to deal with the issues raised by this evidence.

[10]         As suggested by Zhu, the defendant is obligated to exercise due diligence prior to trial to ensure that all issues are before the court and that all defences are raised so as to avoid unnecessary re-openings of trial.  With that said, I find that this defendant was diligent in their actions prior to trial in trying to uncover possible avenues of mitigation of this plaintiff.  In fact, the defendant has been so diligent that it has, in the past, received criticism from the court for some of their “diligence”.  That, coupled with what appears to be a prima facie denial at trial and at discovery by this plaintiff of work that the documents support he did, leads me to conclude that this defendant has exercised due diligence prior to and at trial in attempting to get all evidence in the area of mitigation before the court.

[11]         I direct that the trial of this matter be re-opened.  I further direct that the plaintiff be required to attend a further examination for discovery on the issue of mitigation during the relevant notice period as it relates to his relationships with Cap-It and Dickson’s Signs Ltd.  Additionally I direct that the defendant be permitted to call additional witnesses at trial on the issue of mitigation during the notice period as it relates to Cap-It and Dickson’s Signs Ltd.

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.

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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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