In Mohamud v. Yu, the Plaintiff was injured in two motor vehicle collisions, and sought damages for both. ICBC’S lawyer admitted liability for both accidents, with the two actions being consolidated for trial purposes.

 

At trial, counsel the Plaintiff called an expert in chiropractic medicine, an expert in physical medicine and rehabilitation, and a dental expert in oral medicine. However, counsel for the Plaintiff did not call the Plaintiff’s very own family doctor, nor was a medical report produced. No evidence from an actual treating physician was adduced.

 

This raised the issue of an adverse inference to possibly be drawn by the Court. An adverse inference can be drawn if the Plaintiff, who is trying to prove his or her case, without explanation does not call a witness who can give supporting evidence for the Plaintiff.

 

Counsel for the Plaintiff argued that the Plaintiff’s family doctor was not called, as only the experts that were deemed to be the most necessary were called, and that a family doctor is not always the best able to give an opinion.

 

However, the Court disagreed, stating that her primary care doctor would be the only person to be able to provide the Court with an opinion about the Plaintiff’s condition, given the long standing relationship between the two, as well as observations made by the family doctor during the pertinent periods of time.

 

In drawing an adverse inference against the Plaintiff for not calling her treating physician, the Court commented :

 

[33] The plaintiff was a poor historian. Important parts of her evidence were inconsistent with statements she made (or did not make) to others, such as her family doctor and the experts who testified on her behalf. Some of these inconsistencies may be quite normal, but the extent of the inconsistencies here are of concern, particularly in the absence of any objective confirmatory evidence from a treating doctor or other medical professional. Most notably, the plaintiff’s family doctor, who saw her throughout these years, did not testify or provide an expert report. It is especially troubling that this is a doctor whom the plaintiff said was her long-time, trusted family physician.

 

[40] I certainly accept that a plaintiff is entitled to call the witnesses she considers necessary but I do not agree that the family doctor in the circumstances here would not be the best able to give an opinion. While it does appear in the clinical records that the plaintiff saw other physicians from time to time, her primary care physician is the only person who could have given the court an opinion about the plaintiff’s condition, informed by a long standing relationship and observations throughout the relevant periods of time (following not only the two accidents but also the Skytrain fall). This takes on more importance in light of the plaintiff’s evidence that she would have described all of her symptoms and complaints to her doctor and that whatever was recorded in the clinical notes reflected what she told the doctor at the time. I do not consider the fact that the defendant could have called the doctor as a witness to adequately explain this plaintiff’s failure to do so.

In Norris v. Burgess, the Plaintiff was injured in two motor vehicle accidents, and the actions were consolidated at trial. Liability for both accidents was admitted by ICBC’S lawyers.

 

During the litigation process, the Plaintiff was examined by a psychiatrist on behalf of the Defendant. However, ICBC’S lawyer elected not to produce an expert report of the psychiatrist, and also elected not to call the psychiatrist as an expert witness.

 

During the trial, which was by judge and jury, ICBC’S lawyer objected to the Plaintiff testifying as to her attendance at the psychiatric examination, as well as the surrounding circumstances. Counsel for the Plaintiff sought a ruling by the Court that the Plaintiff could testify, on the basis that her testimony was relevant to show that she had not exaggerated her injuries, and on the basis that an adverse inference could be argued during closing argument by the fact that the psychiatrist was not called as a witness, nor was any report produced.

 

ICBC’S lawyer argued that it would be highly prejudicial to allow the Plaintiff to testify about the independent medical examination, as the jury would draw an adverse inference due to the fact that no expert report was produced, nor did the psychiatrist testify.

 

The Court would rule that the Plaintiff was at liberty to testify, commenting that :

 

[13]        As Rule 7-6 of the Supreme Court Civil Rules contemplates, an individual medical examination may be ordered where the “physical or mental condition of a person is in issue”. In this case, the independent medical examination was not pursuant to a court order. The Rule, however, illustrates that an independent medical examination will usually occur only where there is a physical or mental condition in issue.

 

[14]        The plaintiff’s medical condition is clearly in issue. Where the defence asserts that the plaintiff may have exaggerated her injuries, steps taken by the plaintiff at the request of the defence may be relevant.

 

[16]        Civil litigation is adversarial and litigant-driven. Where one party asks that the other party attend an interview or examination with a third person (whether or not that person is an expert) and the other party so attends, the requesting party should not be surprised that the interview or examination may be relevant with evidentiary consequences, including the possibility of an adverse inference. An unwanted but foreseeable consequence does not give rise to unfair prejudice.

In Koltai v. Wang, the Plaintiff was injured when he was violently rear ended in a motor vehicle accident, and consequently pursued an ICBC claim for multiple heads of damages, including pain and suffering, income loss, diminished earning capacity, out of pocket expenses (special damages), and the cost of future care. Liability was admitted by ICBC’S lawyer. The Plaintiff’s wife testified at trial about the effect that his injuries had taken on his life, however counsel for the Plaintiff did not elect to call the Plaintiff’s father, sister, or brother-in-law. ICBC’S lawyer argued that, as a result of this, an adverse inference should be drawn. The Court, however, rejected this line of argument, ruling that such individuals are not the type of witnesses contemplated in the adverse inference rule.

 

[229] I am not satisfied that the defendant’s assertion that the plaintiff’s father should have testified to the details of the date and time he loaned the back brace to his son is correct. Further, I am not satisfied that the plaintiff’s failure to adduce his father’s evidence concerning his observations of the plaintiff up to September 2014 is an issue that should give rise to an adverse inference. I do not consider the type of the evidence that the plaintiff’s father could have given was necessarily corroborative of a fact that the plaintiff was obliged to prove in this case; the point raised by the defendant was not essential to the plaintiff’s claim. The issue only arises in the context of cross examination because the defendant contends that the plaintiff has been untruthful concerning his ability to walk and do other things and that the plaintiff was obliged to prove that his father loaned him the back brace on October 1, 2014.

 

[230] Further, I am not satisfied that the plaintiff’s father was within the plaintiff’s exclusive control; the defendant could easily have subpoenaed the plaintiff’s father to testify on this point.

 

[231] In the context of these circumstances, I am not satisfied that it is appropriate to draw an adverse inference. Any inference would likely have been limited to the fact that the father’s evidence would not have helped the plaintiff’s case rather than an inference that the plaintiff was untruthful when he described the circumstances under which he received the brace.

 

[232] The defendant said that an adverse inference should also be drawn because the plaintiff failed to call his sister, brother-in-law and father to testify about his condition in October 2014. The plaintiff’s wife was able to testify at about his circumstances from the date of the accident forward and the plaintiff is not obliged to call every person who had knowledge of his pre-and post-accident circumstances. These witnesses are simply not the type of witness contemplated in the adverse inference rule.

In Miles v. Kumar, the Plaintiff was injured as a cyclist when attempting to switch from the right lane to the left lane, in order to turn left at an intersection. The Plaintiff brought an ICBC claim for damages for pain and suffering, as well as various other forms of damages. The Court ruled that the Plaintiff was entirely responsible for the accident. At trial, the Defendant driver did not testify. The Plaintiff asked the Court to draw an adverse inference as a result of this, however the Court refused to do so.

 

[66] The plaintiff has submitted that the Court should draw an inference adverse to the defendants because Ms Kumar – “the only person who could have provided evidence as to her position, speed, attentiveness, driving experience, familiarity with the road, as to when she first saw Mr. Miles, and as to why she made no attempt to avoid a collision” – who had been scheduled to testify, did not do so, and without explanation. In support of this position, the plaintiff cites Bronson v. Hewitt, 2010 BCSC 169. In Bronson, the court drew an adverse inference against the defendants because one of the defendants did not testify. The court found that this defence decision deprived the court of the best evidence of conversations critical to deciding the case.

[67] The defendants submits that Bronson is distinguishable from the case at bar. In Bronson, a positive defence was advanced; one which required proof of the content of critical conversations between the two defendants. The court observed that evaluating the defence advanced obliged the court to consider the credibility of both defendants, and the failure to call one defendant deprived the court of the best evidence of the conversations and the opportunity to assess credibility – a matter very much in issue.

[68] In the case at bar, the defendants note that a positive defence has not been advanced. Here, the defendants simply rely upon the onus the plaintiff bears to prove its case. The defendants’ position is that the plaintiff has failed to prove the negligence alleged.

 

[69] Having regard to the foregoing, I agree with the defendants that the effect of drawing an adverse inference against Ms Kumar would be to reverse the onus of proof; moreover, Ms Kumar was extensively cross-examined at her Examination for Discovery and the plaintiff chose to “read in” many of Ms Kumar’s answers as evidence in the plaintiff’s case.

[70] I am satisfied that there is a critical distinction between the case at bar and that in Bronson. Here, the defendants have not advanced a positive defence and then elected not to testify in support of it. In such circumstances, the defendants are entitled to rest upon the plaintiff’s failure to prove his case. Drawing an adverse inference against the defendants for the failure to present a case with Ms Kumar as a witness would undermine the fundamental legal premise that it is the party alleging the wrongdoing who bears the onus of proof.

In Chekoy Sr. v. Hall, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for several heads of damages, including pain and suffering, income loss, diminished earning capacity, and the cost of future. An issue that arose was defence counsel’s refusal to produce a medical report from one of their own doctors that had examined the Plaintiff at at independent medical examination, despite the fact that defence counsel had previously agreed to produce it. Counsel for the Plaintiff asked the Court to a draw an adverse inference due to the failure of defence counsel to produce the report, which the Court did.

 

[85] In any event, the medical opinions all support objectively the fact that Mr. Chekoy has symptoms from cervical radiculopathy. As noted earlier the defence did not tender any medical evidence though it obtained an independent medical examination and report of the plaintiff. The failure of defence counsel to produce the medical report which counsel had agreed to provide to plaintiff’s counsel, without an adequate explanation, allows for an adverse inference to be drawn in this regard. The defence’s theory that the plaintiff’s neurologic problems relate to physiotherapy treatments, chiropractic treatments, or from the plaintiff lifting a tool box on the back of a pickup has not been established; I note Dr. Golin’s did not accept that theory. While the defence raised the question of the delay in symptoms, I accept the medical evidence that there is considerable variability in symptom onset.

[86] On balancing the totality of the evidence including the failure of the defence to produce its independent medical report, I find that the Accident is the cause of the plaintiff’s cervical radiculopathy and not from the natural progression of the plaintiff‘s pre-existing degenerative disk disease, subsequent treatments, or other events.

 

In Westbroek v. Brizuela, the Plaintiff was injured in a motor vehicle collision, and brought an ICBC claim for damages for pain and suffering, income loss, diminished earning capacity, and future care costs. The Plaintiff would eventually be awarded a sizeable amount of over $600,000 for diminished earning capacity. The Plaintiff elected not to call his family doctor and an orthopaedic specialist at trial, causing ICBC’S lawyer to argue that the Court should draw an adverse inference. In the circumstances of this case, the Court refused to draw an adverse inference, holding that the evidence of the doctor and specialist in question would not have been superior to other experts called by the Plaintiff, nor that their evidence would been detrimental to the Plaintiff’s case.

 

[86]        The defendant also says there should be an adverse inference drawn for the failure to produce evidence from Dr. Lowe and Dr. Jackson. Dr. Lowe is a general practitioner at the walk-in clinic Mr. Westbroek attended from time to time after the motor vehicle collision. Dr. Jackson is the orthopaedic surgeon who did the operation to relocate the ulnar nerve. The clinical records of both of these physicians were available to both parties and neither of the doctors had terribly extensive dealings with the plaintiff. Dr. Lowe saw him, at least initially, as a walk-in patient and afterwards in prescribing different medications. Dr. Jackson’s treatment was limited to the unfortunately unsuccessful nerve relocation. In these circumstances, I do not find it reasonable to infer that their evidence would be superior to that given by the doctors called by the plaintiff, or that what they might have said would have been detrimental to the plaintiff’s case. Accordingly, I do not draw the negative inference suggested.

 

In Ram v. Rai, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering. A dispute arose between the parties as to the duration and severity of the symptoms of the Plaintiff. Despite a repair amount under $1000, the Court still ruled that the impact was not insignificant. The Plaintiff’s mother and sister testified before the Plaintiff. It is usually the case at trial that the Plaintiff testifies first, before anyone else. ICBC’S lawyer asked the Court to draw an adverse inference, given the Plaintiff’s late testimony. The Court refused to do so, but did provide some commentary with respect to the issue of the timing of a Plaintiff’s testimony.

 

[35]         The defendants submit in addition that the Court should draw an adverse inference from the fact that Ms. Ram testified as the third witness in the trial, and sat in the courtroom listening to the evidence of her mother and her sister, who testified first and second.  The defendants note that this sequence did not seem to be required for scheduling reasons, because the mother and the sister remained in or around the courtroom after having given their evidence.

 

[36]         A plaintiff is free to call her witnesses in the order she and her counsel choose.  However, I agree with the defendants that for a plaintiff to testify after hearing other witnesses testify may affect the weight that can be given to the plaintiff’s own evidence about matters the earlier witnesses addressed.  It may be difficult for the trier of fact to be confident that the plaintiff’s account of events is her own, and is not coloured by or adapted to the preceding evidence. 

 

[37]         I note also that it may be difficult for the trier of fact to appreciate and assess the full import of the evidence of supplementary witnesses without having first seen and heard the plaintiff herself in the witness stand.  However, that observation relates to a matter of practice or effective advocacy, and not to one of law, evidence, or civil procedure. 

 

[43]         To my observation, when Ms. Ram had no personal knowledge about a matter, she said so; she did not borrow from the testimony she had heard her mother or her sister give shortly before.  For example, Ms. Ram testified that she did not know whether the impact of the collision had moved the Ram car forward.  She had been in the courtroom when her mother testified earlier during the same day that the impact moved the car forward by between 3 and 6 feet, shifting it into the intersection.

 

[44]         In short, I found each of Ms. Ram and her mother and her sister to be impressive and entirely credible witnesses.  While I have carefully considered the implications of the order in which they gave their testimony, I find no indication at all that Ms. Ram’s evidence was affected by her mother and sister having testified before she did.

In Frech v. Langley et al, the Plaintiff was injured in two motor vehicle accidents, and brought an ICBC claim for soft tissue injuries. The Plaintiff had a medical report written, however elected not to use this report, or have the author of the report testify at trial. ICBC’S lawyer would actually call the expert in question to testify, but still argued that an adverse inference should be drawn against the Plaintiff for failing to call the expert. The Court rejected this argument, commenting that:

 

[242] This is a peculiar case in that an adverse inference is sought against the plaintiff for failing to file a report from Dr. Cox, although Dr. Cox did in fact give evidence at the trial at the instance of defence counsel.

 

[243] It is a strange circumstance that defence counsel asks for an adverse inference that Dr. Cox would have given unfavourable opinion evidence to the plaintiff at the same time she says she did not ask Dr. Cox that same question in the witness box because she wasn’t sure what his evidence would be.

 

[244] Plaintiff’s counsel says that Dr. Cox was not cooperative and was in fact antagonistic and he had Dr. Hershler’s opinion to rely upon.

 

[245] Dr. McGraw gave evidence and his prognosis for the plaintiff was for good recovery, meaning a return to her activities of daily life, although he was unable to predict that she would be pain-free. I accept this opinion.

 

[246] I cannot envisage Dr. Cox having given any different opinion if his opinion had been sought either by the plaintiff or by defence counsel in cross-examination.

 

[247] Therefore I decline to draw any adverse inference.

 

 

In O’Connell v. Yung, the Plaintiff had suffered a serious brain injury in a motor vehicle accident. The Plaintiff subsequently brought an ICBC claim for several heads of damages. Although the parties agree prior to trial on an amount for certain heads of damages, some remained, such as pain and suffering, the cost of future care, and an in-trust claim for the husband of the Plaintiff. At trial, the Plaintiff did not testify, as her counsel believed her to be an unreliable historian. The Plaintiff’s case consisted of medical evidence and witnesses. The Plaintiff was awarded a substantial amount of damages. ICBC’S lawyer appealed, arguing that the award was too high, and that the Court should have drawn an adverse inference from the Plaintiff not testifying. The British Court of Appeal reduced the amount of the award, but dismissed the adverse inference argument put forth by the lawyer for ICBC.

 

[16]         I first observe that this Court stated in Jones v. Trudel, 2000 BCCA 298 at para. 34, 185 D.L.R. (4th) 193, that the failure to address the question of whether an adverse inference should be drawn is not, in and of itself, reversible error: per Southin J.A. Mr. Justice Lambert agreed that the trial judge made no reversible error and stated, at para. 52:

 

In particular, it is my opinion that the trial judge was neither obliged to draw an adverse inference from the plaintiff’s failure to call the witnesses named by the appellants, nor to give reasons for not doing so. If a trial judge is asked to draw an adverse inference from a failure to call a particular witness, then whether the trial judge ought to deal with that point in her reasons must depend on an assessment of the significance of the point in the case, and on the trial judge’s concern to deal with all the points that might be thought to be significant by the losing party. I do not think that any more general rule than that is desirable.

 

[17]         The application of that general rule is dispositive of this ground of appeal. I will nonetheless address the arguments raised in this case as they are important to the ultimate outcome of the appeal.

 

[27]         There is no doubt that, in the absence of an explanation, it is permissible to infer that the reason a party does not testify is that their evidence would have harmed their case. The principle was forcefully stated in Lévesque v. Comeau, [1970] S.C.R. 1010 at 1012-13, 16 D.L.R. (3d) 425. That case involved a claim for damages for injuries sustained in a motor vehicle accident. The only issue was whether the accident caused the plaintiff to suffer a hearing impairment that did not manifest itself until two months after the accident. The plaintiff saw five different doctors in an effort to diagnose and treat her deafness. Only one of the doctors testified at trial. The trial judge found that the other doctors might have cast some light on the cause of her condition and drew an unfavourable inference. Pigeon J., for the majority, held that the plaintiff alone could bring before the Court the evidence and the facts necessary to establish causation and had failed to do so. He said, “[i]n my opinion, the rule to be applied in such circumstances is that a Court must presume that such evidence would adversely affect her case” (at 1012-13).

 

[30]         The circumstances in the instant case are distinguishable from Lévesque. The judge heard six days of evidence in the plaintiff’s case that described in great detail Ms. O’Connell’s abilities before and after the accident. She heard evidence from six expert medical witnesses and from Ms. O’Connell’s husband, son, and sister, all of whom testified to her cognitive deficits. The defendants did not object when plaintiff’s counsel advised that Ms. O’Connell would not be called to testify. The defendants did not ask to examine her as an adverse witness. The defendants did read in excerpts from Ms. O’Connell’s examination for discovery. Those excerpts, as the respondent argues on appeal, demonstrated Ms. O’Connell’s unreliability. For example, she was unable to recall her son’s birth date and misstated the number of years she had been employed prior to the accident. Even in submissions, the defendants made no reference to Ms. O’Connell not testifying.

 

[31]         In my opinion, the adverse inference advocated by the appellants cannot fairly be drawn in the circumstances of this case. First, the defendants at trial did not ask that an adverse inference be drawn. Second, the medical evidence supports the judge’s conclusion that Ms. O’Connell had limited ability to testify. Further, the evidence suggests that had Ms. O’Connell testified she may have left a false impression as to the extent of her severe brain injury. As Dr. Hirsch noted, [AB V. 4, p. 573] “On the surface, she looks fine and she has intact social skills, however, she would not be able to look after her needs properly.” Similarly, Dr. Anderson testified that Ms. O’Connell is “easily influenced by others” and tends to say whatever they want to hear. In my view, Ms. O’Connell’s limited ability to testify would have complicated rather than aided in the assessment of her claims.

 

[32]         The judge recognized the difficulty presented by Ms. O’Connell not testifying but accepted the explanation given by her counsel. Her decision would obviously be informed by her assessment of all the evidence.

 

[33]         In these circumstances, I consider the explanation given to be adequate and would reject the submission that the judge erred in not drawing an adverse inference from Ms. O’Connell’s failure to testify.

In Milburn v. Ernst, the Plaintiff was a motorcyclist injured when he was struck from behind. The Plaintiff commenced an ICBC claim for damages, alleging soft tissue injuries that were permanent in nature, while the lawyer for ICBC disputed this, claiming that the symptoms of the Plaintiff had resolved, and that minimal damages were appropriate. The Plaintiff obtained two expert reports, however chose to maintain privilege over them, and as such did not produce them for trial. ICBC’S lawyer argued that the Court should draw an adverse inference, however the Court refused to do so.

 

[85]         The major point in contention relates to Mr. Milburn’s evidence and contention at trial that he now has chronic or constant pain in his neck, lower back and thoracic spine which continues to plague him to this day and the further contention that this pain will likely continue into the future.

 

[86]         The defence says that Mr. Milburn’s evidence is contradictory, principally considering what he has reported to Drs. Behroozi, Badii and Kendall who all met with and examined Mr. Milburn around the same time in March 2010. Mr. Milburn told Dr. Behroozi that he had pain in his upper and lower back most of the time, with exacerbations intermittently. He told Dr. Badii that he had lower back pain that was no longer constant, pain in his buttocks that was intermittent, left upper back pain that was fairly constant and neck pain that was intermittent. Finally, he told Dr. Kendall that he had constant low grade pain in his upper back and mild to debilitating pain in his lower back. The defence says that there is no way to reconcile Mr. Milburn’s own evidence with these different reports over such a short time period, let alone reconcile it with his current evidence.

 

[87]         The defence also points out that in Mr. Milburn’s list of documents, he listed two privileged medical-legal reports dated June 11 and 12, 2010. These were commissioned by Mr. Milburn’s counsel but were never served or presented at trial. The defence submits that an adverse inference should be drawn that the evidence in those reports would be contrary to Mr. Milburn’s case.

 

[88]         In my view, this is not an appropriate case to conclude that an adverse inference should be drawn. There is no evidence that the authors of those reports even saw Mr. Milburn …… Mr. Milburn’s counsel has advised that this evidence was not submitted because it was of no assistance to the court, not that it was adverse to the current medical evidence. In fact, there may have been any number of reasons why the reports were not submitted and while it is possible that they contradicted the reports of Drs. Behroozi and Badii either in whole or in part, it is equally possible that they did not materially add to those reports. As was noted by the court in Bronson at para. 329, an adverse inference can only be drawn if such testimony would be superiorin respect of the facts to be proved.

 

[89]         Counsel for Mr. Milburn is entitled to prepare his case, and obtain whatever expert reports that might assist in advancing his case. To suggest that any decision not to use an unidentified expert report leads to an adverse inference in respect of any case is going well beyond the general proposition relating to adverse inferences. The disclosure process is intended to provide opposing counsel with the means of testing the claim of privilege, not to allow such claims to be made that an adverse inference should be drawn in these circumstances.