Court Of Appeal Upholds Trial Decision To Exclude Certain Clinical Records

In Bancroft-Wilson v Murphy, the Plaintiff was injured a car accident, and brought an ICBC claim for pain and suffering, diminished earning capacity, and other heads of damages. The Plaintiff was awarded $70,000.00 and $125,000.00 for diminished earning capacity, which were upheld on appeal. The British Columbia Court of Appeal also upheld the trial judge’s decision to exclude the introduction of certain clinical notes by the ICBC lawyer for the purposes of cross-examining the Plaintiff’s family physician.


[7] During cross-examination of the plaintiff’s family physician, Dr. Dwyer, counsel for the defendant asked to have his clinical notes admitted as an exhibit.  Counsel stated that the defendant intended to rely on the absence from the notes of any notation of a complaint by the plaintiff related to limitations on his work capacity, particularly with respect to script writing.  Dr. Dwyer testified that he would have noted such complaints if they had been made to him.  Counsel argued that the clinical notes were admissible as business records under s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124.  The trial judge questioned the admissibility of the portions of the notes that recorded the plaintiff’s complaints of symptoms.  He distinguished between the doctor’s notes of the results of his physical examination of the plaintiff and notes of the plaintiff’s subjective complaints to the doctor.  The trial judge considered the plaintiff’s statements to be hearsay.  He questioned the evidentiary value of the records apart from the doctor’s testimony, pointing out that the doctor was entitled to refer to his notes to refresh his memory and “there’s nothing preventing you from exploring all of these questions with this witness.”


[8] The trial judge summarized his conclusions as to the attempted use of the notes to discredit the plaintiff’s account of symptoms in these terms (at paras. 35 to 37):


I accept Mr. Bancroft-Wilson’s evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance.  Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful.  It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment. These notes are not made for investigative and litigation purposes.  If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.


Physicians are not investigators.  They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes.  The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness.  It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.


I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.


[9] The defendant contends that the trial judge erred in law by refusing to admit the clinical notes as admissions against interest. This Court in Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, 70 B.C.L.R. (4th) 247, has recently confirmed that statements made by a plaintiff to doctors and recorded in clinical notes are hearsay and not admissible by the plaintiff to prove the truth of the symptoms complained of to the doctors.  The Court in Samuel was not concerned with the exception to the hearsay rule for admissions against interest.  Statements made by a plaintiff to doctors may be admissible under that exception when tendered for that purpose by the defendant or other party opposed in interest to the plaintiff; see Cunningham v. Slubowski, 2003 BCSC 1854 at para. 14.


[11] While clinical records may be admissible as a record of admissions against interest in appropriate circumstances, in the instant case the defendant seeks to rely on the clinical notes to support the inference that the plaintiff did not complain to the doctor of the symptoms he alleges because the notes do not contain any reference to those symptoms.  In effect, the defendant is contending for an admission by omission.  In my view, that overstretches the limits of the admissions exception in the circumstances here.  The notes standing alone are of little if any weight for the purpose intended by the defendant and I think that the trial judge adopted the proper course in limiting their use to refreshing the memory of the doctors during their testimony.


[12] Viewing the trial judge’s reasons as a whole on this aspect of the case, I am satisfied that he did not reject entirely the admissibility of the clinical notes and he treated their significance as a matter of weight in the context of the doctors’ testimony.  For example, the trial judge observed that Dr. Dwyer’s notes supported the plaintiff’s complaint of back pain within four days of the accident.  The judge advised counsel for the defendant that she could renew her application to admit the notes later and counsel did not take up that opportunity.  I think that any evidentiary value attached to the notes was merged in the testimony of the doctors and there was no prejudice to the defendant arising from their formal inadmissibility as admissions against interest.


Jury Awards Zero In Damages : Court Does Not Substitute Own Verdict

In Ramcharitar v. Gill, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for non-pecuniary damages, as well as various other forms of damages. The trial was heard by a judge and jury, with the jury concluding that the Defendant was liable for the accident, but that the negligent conduct had not caused or contributed to the Plaintiff‘s injuries in any way. As such, the jury did not award the Plaintiff any damages. Immediately following the verdict, ICBC’S lawyer made an application to have the claim dismissed, which was granted. The formal Judgment had yet to be entered when counsel for the Plaintiff made an application, pursuant to the inherent jurisdiction of the Court and the Rules of Court, to set aside the verdict of the jury and for a new trial or, in the alternative, to have the trial judge substitute his own verdict for that of the jury. The trial judge dismissed the applications by Plaintiff‘s counsel.


[21]           I also note that plaintiff’s counsel was given an opportunity to comment on the substantive elements of the jury charge and questions.  Although he made submissions regarding other parts of the charge, neither he nor defendant’s counsel took issue with the part of the charge concerning negligence.  I do not accept that the charge is defective but, if I am wrong, the issue is for the Court of Appeal.

[22]           As I understand the plaintiff’s second issue, he says that there was clearly evidence to support a finding that the negligent conduct of the defendant caused some injury to the plaintiff, even if it was much less extensive than the plaintiff claimed.  He points out that the defendant did not argue otherwise.  As the sole finder of fact, the jury is entitled to accept all, none or part of the evidence put forward on behalf of the plaintiff.  It is obvious that the jury rejected the evidence of the plaintiff and his witnesses in its entirety.  Whether it was reasonable for the jury to do so in the circumstances is a question potentially for the Court of Appeal but, in my view, a trial judge may not reject such a finding.


[23]           This is not a case of a jury making a finding that has no evidentiary basis which would be subject to correction by a trial judge exercising his or her inherent jurisdiction.  In substance, the plaintiff’s complaint is that the jury should not have answered the second question in the negative, at least having regard to the apparently undisputed evidence before it.  In my view, no trial judge could ever intervene or reinstruct a jury in such a circumstance without saying, in effect, that his or her view of the reliability of some, or all, of the evidence should prevail over the view of the jury.


[24]           In an alternative argument, the plaintiff complained of statements made by counsel for the defendant during closing submissions to the jury.  Counsel for the plaintiff did not raise those complaints after the submission and I would not accede to them at this late juncture.


Facebook Photos Of Plaintiff Affect Damages Award

In Bagasbas v Atwal, the Plaintiff alleged that she could not participate in certain sporting activities, however the lawyer for ICBC produced photographs from her Facebook page that contradicted her position. This had an effect on the amount of damages awarded to the Plaintiff.


[5]               The evidence disclosed that the only pre-accident activity which the plaintiff has given up for the time being is running.  She said she could no longer kayak, hike or bicycle, but the defendant produced some of the plaintiff’s own photographs posted on her Facebook page that showed her doing these activities.  There was no evidence of decreased capacity to perform household or work related chores.  The plaintiff and her husband testified that if the plaintiff exerted herself, she tired more easily than before, but it was unclear whether this related to injury to her upper or lower back.


[6]               The distinction between the plaintiff’s complaints of upper back and lower back injury is significant, because there was no evidence linking the upper back injury to the accident.  Dr. Ladhani said there was a temporal link between the complaint of pain in the neck, shoulder and upper back regions and the accident, but in his opinion no such link existed with respect to the plaintiff’s lower back injury.  Indeed, plaintiff’s counsel made it clear from the outset of trial that the plaintiff was not claiming for compensation for anything arising from her herniated disk or the condition of her lower back.


[7]               The medical evidence before me was rather vague.  Combining this evidence with the plaintiff’s subjective evidence of her complaints, I find that on a balance of probabilities the plaintiff suffered a mild whiplash to her right neck, shoulder and upper back in the accident of June 1, 2006.  I further find that the whiplash had probably substantially resolved itself within three months.  Any further complaint of pain in the fall of 2006 is not supported by the objective evidence of the plaintiff’s rather strenuous activities.  The photographs of the plaintiff dancing illustrate arm, neck and back movements, executed in approximately two inch heels, that contradict any claims of restricted range of motion or significant pain in these areas.  It has been said many times in many cases that the court must be careful in awarding compensation where there is little or no objective evidence of continuing injuries, or in the absence of convincing evidence that is consistent with the surrounding circumstances (Butler v. Blaylock[1981] B.C.J. No. 31 (S.C.); Price v. Kostryba 1982 CanLII 36 (BC SC), (1982), 70 B.C.L.R. 397 (S.C.)).


Court Finds Matter Not Too Complex For A Jury

In Mohammend v Farenholtz, the Plaintiff made an application to strike the Jury Notice filed by the lawyer for ICBC, claiming that all of the medical documentation spanning four motor vehicle accidents would be too complex for the jury. The Court dismissed the Plaintiff’s application.


[8]               One could almost infer from that that there really wasn’t any significant concern as to the appropriateness of a jury, as frankly it would be difficult to imagine why, if there was a concern, neither of two plaintiff’s counsels would have taken any steps to set it aside within the time limitations prescribed by the rules.


[9]               Nevertheless, I am now presented with a circumstance that requires a decision and I am told that at present, in light of all of the available reports, this matter is too complex and intricate for a jury to deal with.  I have not read all of the reports during the course of this chambers application, and I do not intend to.  I have read the portions of the reports referred to in counsels’ outline and submissions and have read beyond that through some of the reports that were contained in the two thick binders that I was presented.


[10]              My impression, upon reading those reports, is that although there are a great many reports to deal with, they do not strike me as being overly complex or difficult.  In fact, one or more of the reports, the exact numbers of which I neglect to make a note of so I cannot refer specifically to them in these reasons, but nevertheless one or more of these reports struck me as being very impressive in the way in which the author laid out in layman’s terms some of the definitions and explanations of what the symptoms and injuries were all about.


[11]              I do not believe that the context of those reports, the terminology in those reports or the description of the plaintiff’s injuries is complex enough to warrant dispensing with a jury.  I say that bearing in mind that the onus is upon the plaintiff to establish that proposition.


[12]             However that then takes us to the issue of even if the reports in and of themselves don’t present that degree of complexity, perhaps it would be too complex to expect a jury to ascribe the symptoms and injuries complained of by the plaintiff to the respective accidents.  Now, that might well present a difficult task.  Frankly, that aspect was the most concerning to me as I listened to submissions.


[13]            A further factor to consider is that defence counsel takes the position that there are significant issues of credibility with respect to this plaintiff and that a jury is ideally suited to deal with that issue.  Counsel also asserts that with the help of schematics or good counsel’s work who could make things clear, it is not at all as difficult as one would expect to be able to ascribe various injuries to the respective accidents.


[14]            The submission was that two of the accidents were very minor and that competent counsel could easily deal with this issue with respect to assisting a jury in understanding what injuries relate to what accident.  On balance then, considering all of these matters, I conclude that the plaintiff has not met the onus of establishing that this is an inappropriate case for a jury.


[15]            There is in British Columbia, as plaintiff’s counsel candidly admitted, a very strong right to a party to choose a trial by jury, subject to the restrictions imposed by legislation, and therefore the onus does fall to the plaintiff to make its case that the defendant ought not to have its right to a jury trial.  As I have said, I believe that the plaintiff has fallen short of satisfying that onus in this particular case.


Court Grants Defence Application For Production Of Hard Drive Showing Facebook Activity

In Bishop v Minichiello, the Plaintiff sought damages for a brain injury. The lawyer for ICBC brought an application to compel the Plaintiff to produce the hard drive of his computer, as the ICBC lawyer wanted to examine the Plaintiff’s hard drive for the amount of time he spends on Facebook. The Court granted the application.


[46]                Electronic data stored on a computer’s hard drive or other magnetic storage device falls within the definition of “document” under R. 1(8) of the Rules of CourtIreland at para. 6.


[50]               Metadata is information recorded or stored by means of a device and is thus a document under R. 1(8): Desgagne at para. 29.  Metadata is a report of recorded data that is generated by computer software.  It is not something created by the user; rather, it is based on what the user does with their computer.  In both Park andDesgagne, it was held the threshold of relevance had not been met to order production of records of the frequency and duration of computer use.  However, Mr. Justice Myers in Park stated at para. 42 that he did not mean to say that hard drives and other electronic documents need never be produced under R. 26.  Thus, in the appropriate case if the threshold of relevance is met, a hard drive may require production.


[53]           Similarly, the application at hand is of narrow scope.  The defence wishes to have the plaintiff’s hard drive of his family computer produced and analyzed to determine the periods of time the plaintiff spent on Facebook between eleven at night and five in the morning, each day.


[54]           Examination for discovery evidence of the plaintiff’s mother confirms that the plaintiff is the only person in the family using the family computer between those hours.  The plaintiff suggests that, at times, friends may use the computer once he logs onto Facebook.  But that is an evidentiary issue for trial.  The issues of privacy and solicitor-client privilege are basically resolved as only the plaintiff has the password to his Facebook account and he has not used this account to converse with his counsel.


[55]           It is true the Bishop family computer is more akin to a filing cabinet than a document; however, it is a filing cabinet from which the plaintiff is obligated to produce relevant documents.  This sentiment was approved in Chadwick.  Simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose that which is relevant.  If there are relevant documents in existence they should be listed and produced (or simply listed if they are privileged). 


[56]           The defence argues that this case is distinguishable from Baldwin and that the information sought is relevant.  The plaintiff advised Dr. Zoffman that his sleep varies with the time one of his friends goes to bed.  This is because he spends a substantial amount of time on Facebook chatting with this friend.  The plaintiff alleges that ongoing fatigue is preventing him from maintaining employment and thus his late-night computer usage is relevant to matters at issue in this lawsuit.


[57] The information sought by the defence in this case may have significant probative value in relation to the plaintiff’s past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents.  Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.

Court Rules Matter Is Not Too Complex For A Jury

In Furukawa v. Allen, the Plaintiff was a passenger when injured in a motor vehicle collision, and subsequently brought an ICBC claim for damages for pain and suffering, as well as various other types of damages. Liability was in dispute. The matter was set for a 25 trial by judge and jury, which was originally agreed to by both parties, however counsel for the Plaintiff at a later point brought an application to strike the jury notice on the basis that the issue of liability and the quantification of damages were both too complex to be heard by a jury. The judge dismissed the Plaintiff‘s application.


[15]           I have assessed the experts’ reports in evidence.  It appears that the plaintiff‘s major injury is to her brain with a resultant cognitive impairment.  Further, there is opinion evidence in the reports that her pre-existing drug addiction may have pre-disposed her to a poor long-term outcome from the brain injury and combined with her brain injury to put her at greater risk of future drug abuse.  Whether alone or in combination, I have concluded that neither the evidence itself, nor the issues arising from the evidence, are sufficiently complex or intricate to constitute grounds to strike a jury notice.

[16]           Further, while I am satisfied that this case requires a scientific investigation into the nature, cause and extent of the plaintiff‘s injuries, the opinion evidence reflected in the experts’ reports is not, in my view, extraordinarily difficult to understand, nor is the language of such a technical nature that a jury would be unable to follow and comprehend the evidence or the factual basis on which the opinions are based.

[17]           A 25-day trial is not excessively long for a jury to retain and maintain an understanding of the evidence.  Juries in both civil and criminal proceedings sit in longer and shorter trials.  I have no basis on which to conclude that an estimated 25‑day trial is so long as to compromise a jury’s ability to fairly decide the issues.

Court Strikes Jury Notice, Despite Application Beyond Brought Beyond 7 Day Rule

In Davies v. Degiano et al, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for non-pecuniary damages, as well as several other types of damages. The trial was set to proceed by judge and jury for a period of 20 days. Counsel for the Plaintiff brought an application to strike the jury notice on the basis that the matter would be too complex for a jury. However, the application was brought well outside the customary 7 day rule, where an application to strike a jury notice needs to be brought within 7 days of being served with the jury notice. Nevertheless, the Court did rule that the application was not out of time, and would eventually strike the jury notice on the basis that the issues would be too complex for a jury.


[9]               In Lomax v. Weins, 2003 BCSC 396, Patterson, Robitaille and Sadowick were applied to an application brought under Rule 39(27), with this result at para. 22:

… The authorities are also clear that such an application may be made at any time before the assigned trial judge who has a wide discretion over the granting or dismissing of such an application outside of the 7 day time period.

[10]           In Joel v. Paivarinta, 2003 BCSC 1050, the court struck a jury notice on the morning of trial, over an objection of counsel for the defendant who argued that it was too late.  The court considered Patterson and other authorities as well as the criteria provided in Rule 39(27).  The application and order in Joel were clearly not made at a pre-trial conference under Rule 35.  It would appear that the seven day time limit in Rule 39(27) is to be given serious consideration, but does not preclude an application to strike a jury notice beyond the limit.

[11]           Metzger J., in Adamson v. Charity, 2006 BCSC 1642, referred to Sadowick, and concluded that the discretion given to a judge or master under Rule 35(4) indicated that the time limit in Rule 39(27) was not immutable.

[12]           I find that this application is not out of time under Rule 39(27) notwithstanding that it was brought more than seven days after delivery of a notice requiring trial by jury.


Court Discusses Crumbling Skull Doctrine In Awarding Plaintiff $75,000

In Gohringer v Hernandez-Lazo, the Court discussed the crumbling skull doctrine.


[90]           It is trite law that the general purpose in assessing damages is to restore the plaintiff to their original, or pre-accident, position.  Through an award of damages a plaintiff is entitled to be restored to his or her original position, but they are not entitled to be placed in a better position:  Athey v. Leonati1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 32, 140 D.L.R. (4th) 235.   Generally speaking, this requires the court to determine the plaintiff’s original position and position subsequent to the negligent act, and award damages to reflect the difference:  Athey at para. 32; Barnes v. Richardson2008 BCSC 1349 (CanLII), 2008 BCSC 1349 at para. 84.  In situations where the plaintiff has a pre-existing condition the thin skull or crumbling skull rule must inform the court’s assessment of damages.  


[91]           In a thin skull situation, the plaintiff’s pre-existing condition has not manifested, or in other words is not active or symptomatic, prior to the event in question.  As the tortfeasor takes his or her victim as they find them, the tortfeasor is liable for all injuries even if the injuries are “unexpectedly severe owing to a pre-existing condition”, as a result of their actions:  Athey at para. 34. 


[92]           In a crumbling skull situation, as in this case, the plaintiff has a pre-existing condition which is active, or likely to become active.  The pre-existing condition “does not have to be manifest or disabling at the time of the tort to be within the ambit of the crumbling skull rule”:  Barnes at para. 89, citing A. (T.W.N.) v. Clarke2003 BCCA 670 (CanLII), 2003 BCCA 670, 22 B.C.L.R. (4th) 1 at para. 62. In crumbling skull situations, the defendant is only liable for damages caused by the accident and responsible for returning the plaintiff to their original position.  As Major J. stated in Athey: the defendant is liable for the additional damage but not the pre-existing damage: at para. 35.   The defendant is therefore not liable for the effects of the pre-existing condition that the plaintiff would have experienced in any event: A. (T.W.N.) at para. 52.  If there is a “measurable risk” that the pre-existing condition would have impacted the plaintiff in the future then, regardless of the defendant’s negligence, a court can take this into account in awarding damages: at para. 35.


[99]           I conclude there was a real and significant chance that the plaintiff’s pre-existing injuries and the injury suffered after the Accident would have shortened the plaintiff’s career as a skating instructor, regardless of the injuries from the Accident.  These injuries ultimately affect the plaintiff’s original position and must be taken into account in the assessment of damages.  The risk that these injuries would have reduced the plaintiff’s chosen career will be taken into account based on its relative likelihood in determining the overall assessment of damages:  McKelvie v. Ng2001 BCCA 341 (CanLII), 2001 BCCA 341, 90 B.C.L.R. (3rd) 62 at para. 17.  Accordingly, non-pecuniary damages should be reduced by 10% to reflect such a risk. 


[100]      In assessing all of the relevant evidence, I conclude the injuries continue to adversely affect the plaintiff in a number of ways and award $75,000 for non-pecuniary damages.  I will deduct 10% as a contingency to reflect the plaintiff’s pre-existing condition and the effect of the subsequent knee injury.

Bus Passenger’s Claim Dismissed After Being Injured In Process Of Sitting Down

In Mott v Welch, the Plaintiff had been standing and holding onto the floor to roof stanchion, when she decided to sit down. At the moment she decided to do so, and before she became seated again, the bus accelerated from a stop sign, and she fell to the floor, injuring herself. The Plaintiff’s claim was dismissed.


[12]           Ms. Mott testified that she did not speak to the driver at the time of the incident because she thought she was not approachable.  She testified that she formed that opinion by watching Ms. Welch interact with other passengers.  The interaction which Ms. Mott described occurred after the incident.  There is no reason why, in the event Ms. Mott thought that Ms. Welch had operated the bus in an irresponsible manner, she could not or would not have mentioned it immediately upon sustaining the injury of which she complains.


[13]           Ms. Welch is an experienced driver who has worked with the Transit Authority for approximately 20 years.  No evidence of her driving record, whether good or bad, was adduced.  There is insufficient evidence from which I am able to assess traffic conditions or driving conditions generally, or from which to conclude that the motion of the bus at the time of the mishap was out of the ordinary.


[14]           Ms. Mott testified that she was a frequent bus rider.  She readily acknowledged that she was aware that buses were subject to motion against which a standing rider had to take reasonable precautions. 


[15]           The bus was well-equipped with stanchions and overhead grips in the area where Ms. Mott first sat and the seat to which she moved. 


[16]           The evidence indicates, and I find, that the bus was travelling on a four-lane road with two lanes in each direction of travel.  The centre lane in the direction of travel was reserved for through traffic.  The curb lane was available for parking.  There is no evidence that there were restrictions against parking at the time that this mishap occurred.  While neither Ms. Welch nor Ms. Mott had a specific recollection of traffic conditions at the stop where the mishap occurred, I am prepared to infer and find as a fact that vehicles were parked in the curb lane ahead of the bus stop zone.  That is the reasonable inference given that the bus swayed upon, or soon after, leaving the stop.  The swaying motion is consistent with the movement of the bus from the curb lane to the centre through lane.


[17]           Ms. Mott testified to her recollection that the bus suddenly accelerated.  I find that contact with the left armrest of the seat is inconsistent with acceleration which would have tended to cause Ms. Mott to move to the rear of the bus toward the right-hand armrest.  The fact Ms. Mott hit the left armrest is more consistent with deceleration of the bus which caused her body to move from the centre of the seat where she intended to sit, to a position over the left side armrest.


[18]           There is no evidence from any rider on the bus who observed the incident or the motion of the bus at the time the mishap occurred. 


[19]           On the evidence that has been adduced, I conclude and find as a fact that the sole cause of the accident was Ms. Mott’s omission to take precautions to ensure her own safety on a moving bus.  She omitted to hold the stanchion that was readily available to her as she sat down.  I am not persuaded on a balance of probabilities that the bus was operated in any manner which could be classified as negligent.

New Trial For Improper Instructions To Jury Regarding Adverse Inference

In Buksh v Miles and ICBC, the Plaintiffs were injured in a motor vehicle accident, and brought ICBC claims for their injuries. The claims of the Plaintiffs were dismissed at trial, with costs ordered against them. The Plaintiffs appealed, and the appeal was allowed, with a new trial being ordered. The British Columbia Court of Appeal discusses the law of adverse inference in relation to a trial judge’s instructions to a jury. In ordering a new trial, the Court commented:


[30]            The notion of adverse inference is related to the best evidence rule.  The observation in Wigmore’s Evidence in Trials at Common Law, Chadbourne Rev. (Toronto & Boston: Little Brown & Company: 1979) vol. II, §287, at 202-3, offers valuable guidance:


Furthermore, it seems plain that possible witnesses whose testimony would be for any reason comparatively unimportant, or cumulative, or inferior to what is already utilized, might well be dispensed with by a party on general grounds of expense and inconvenience, without any apprehension as to the tenor of their testimony.  In other words, put somewhat more strongly, there is a general limitation (depending for its application on the facts of each case) that the inference cannot fairly be drawn except from the non-production of witnesses whose testimony would be superior in respect to the fact to be proved.

[Emphasis in original.]

[31]            The general proposition long applied in British Columbia, stated by Mr. Justice Davey in Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.), is that an inference adverse to a litigant may be drawn if, without sufficient explanation, that litigant fails to call a witness who might be expected to give supporting evidence.  Further, said Mr. Justice Davey at 689, a plaintiff seeking damages for personal injuries “ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so”. 


[32] It seems to me that the tactic of asking for an adverse inference is much over-used in today’s legal environment, and requires, at the least, a threshold examination by the trial judge before such an instruction is given to the jury.


[35]  … it seems to me there is a threshold question that must be addressed before the instruction on adverse inferences is given to the jury: whether, given the evidence before the court, given the explanations proffered for not calling the witness, given the nature of the evidence that could be provided by the witness, given the extent of disclosure of that physician’s clinical notes, and given the circumstances of the trial (e.g., an initial agreement to introduce clinical records that work contrary to the inference, or incorporation of that witness’s views or observations in the report of a witness called by the other side) a juror could reasonably draw the inference that the witness not called would have given evidence detrimental to the party’s case. Where, as here, the trial started on the basis that all records should be before the jury, and ended with a request for an instruction on adverse inferences, and when both counsel have explained the failure to call the witness or witnesses by referring to their own assessment of the utility or need for the evidence, the answer to the threshold question I have stated is not self-evidently affirmative. In this case, in my view, the judge herself should have heard the explanations, considered the degree of disclosure of that witness’s files and the extent of contact between the party and the physician, received submissions and determined whether a reasonable juror could draw the inference sought before giving the instruction to the jury for its consideration in its fact finding role. If not, the instruction had no place in her charge to the jury.