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Tag: re-opening a case after judgement

Court Refuses to Re-open Issue Where ICBC Fails to Pursue "Seatbelt Defence" During Liability Trial

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 59 Comments on Court Refuses to Re-open Issue Where ICBC Fails to Pursue "Seatbelt Defence" During Liability Trial

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing whether ICBC could re-open a trial to raise the seat-belt defence where they failed to advance such a claim during a liability only trial.
In yesterday’s case (Matheson v. Fichten) the Plaintiff was injured in a 2009 collision.  The matter proceeded to trial first on the issue of fault.  Prior to trial the Plaintiff admitted that “at the time of the accident she was not wearing the lap and shoulder seatbelt“.  ICBC did not lead this evidence at trial.  Ultimately fault for the crash was split between the motorists involved on a 90/10 basis.   Prior to entering judgement ICBC sought to re-open the liability trial to permit them to lead evidence of contributory negligence with respect to the seatbelt issue.  Madam Justice Smith refused to do so providing the following reasons:
[4]             Although the Reasons for Judgment state (at para. 5) that there is no allegation of contributory negligence against the plaintiff, in fact, the defendant Harmandeep Singh Bahniwal did allege in his pleadings that the plaintiff was contributorily negligent in that she failed to use her seat belt or failed to have her head rest properly adjusted.
[5]             Further, the defendants produced evidence on the application that at the plaintiff’s examination for discovery on November 3, 2011, she admitted that at the time of the accident she was not wearing the lap and shoulder seatbelt.
[6]             Despite the pleadings and that admission, the allegation of contributory negligence was not pursued at the trial.  During the three-day trial, neither counsel led any evidence bearing on possible contributory negligence on the part of the plaintiff, nor did counsel for either side refer to contributory negligence in his submissions.  The plaintiff did not testify and her testimony at the examination for discovery was not tendered.  There was no medical evidence with respect to her injuries or with respect to the consequences of her having failed to utilize the seatbelt…
[9]             In my view, the defendants had their opportunity at the trial to raise the defence of contributory negligence and to lead evidence in that regard.  They have not satisfied me that there would be a miscarriage of justice if the trial is not re-opened.  While the plaintiff has admitted that she was not wearing her seatbelt, there is no material before me to suggest that medical or other evidence regarding her injuries is available that would possibly change the result of the trial.  Finally, it is likely that the trial would have been conducted differently if the contributory negligence had been pursued, and it would be unfair to the plaintiff to require the trial on liability to be re-opened at this stage.

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

Written by admin on . Posted in Civil Procedure. 95 Comments on 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.