There is a common misconception that once a trial is over, that is it, and the decision of the Court is final. In fact, before the Order of the Court detailing their ruling is formally entered, the trial judge does have discretion to re-open a trial in light of new evidence.  The party seeking to re-open the trial must show that a miscarriage of justice would likely occur should the trial not be re-opened, and that the new evidence sought to be adduced would likely change the result.

 

In Kostecki v. Li, the Plaintiff was injured in a rear end collision, and consequently brought an ICBC claim for damages for pain and suffering, as well as other types of damages. Liability was admitted by ICBC’S lawyer. At issue was how long her acute symptoms persisted, and the extent to which her chronic symptoms still persisted. After the conclusion of the trial, ICBC’S lawyer made an application to reopen the trial in order to prove that the Plaintiff made oral statements to a neurologist and a physiotherapist which were inconsistent with certain aspects of the Plaintiff‘s direct evidence in regards to the seriousness and persistence of her ongoing chronic symptoms. The Court allowed the application, commenting that:

 

[20]         In this regard, as in this case, when it is the defendant who applies to reopen and the plaintiff has not called reply evidence, the additional defence evidence can simply be considered as a continuation of the defence case and is even less prejudicial than when a plaintiff seeks to reopen:  Mitsubishi Heavy Industries Ltd. v. Canadian National Railway Company, 2011 BCSC 1536, at para. 34.

[21]         In my view, prejudice to the plaintiff here is minimal or non‑existent. What she loses is the purely tactical benefit of a slip-up by opposing counsel. We obviously work in an adversarial system and hard knocks are inevitable, but my having to decide the critical issue of credibility with a piece of evidence that may be highly relevant to that assessment sitting on the sidelines only because of counsel error is indeed the stuff of which miscarriages of justice are made.

[22]         Accordingly, the application is allowed with respect to the evidence of Dr. Beckman only. His evidence in the reopening will be restricted to proof of those portions of his letter that were put to Ms. Grace. That obviously includes evidence going to the accuracy of what he has recorded, including his note‑taking and report‑writing practices.

In Matheson v. Fichten, the Plaintiff was injured in a car accident, and brought an ICBC claim for damages arising therefrom. Liability and quantum were severed. At the liability trial, the Court apportioned liability between Defendants, ruling that one of the Defendants was 90% liable, and the other 10% liable. The Court made note in it’s ruling that there was no allegation of contributory negligence made against the Plaintiff.

 

At the application to settle the terms of the original Order of the Court, the Defendants sought to re-open the trial. One of the Defendants argued that the pleadings contained an allegation of contributory negligence against the Plaintiff for not wearing a seat belt, and for not properly adjusting the headrest. Further, evidence was produced in the form of Examination for Discovery transcripts, wherein the Plaintiff admitted to not having worn a seat belt. Despite all of this, the allegation of contributory negligence was not pursued at trial, and no mention was made of it whatsoever in closing submissions. Further, there was no medical evidence as to the consequences of not wearing a seat belt on the Plaintiff’s injuries. Counsel for the Defendants submitted that there had been an oversight, and that the issue of contributory negligence should have been dealt with at the trial on liability.

 

The Court would eventually rule against the Defendants, holding that they had their opportunity at the liability trial to raise the issue of contributory negligence, but chose not to. Further, the Court ruled that there would be no miscarriage of justice should the trial not be re-opened.

 

[8]           The Court has discretion, after judgment but before an Order has been entered, to permit re-opening of a trial.  In Zhu v. Li, 2007 BCSC 1467 (CanLII), 2007 BCSC 1467, Mr. Justice Ehrcke provided a useful summary of the legal principles governing the exercise of that discretion, at para. 14-20.  He referred to the leading cases of Clayton v. British American Securities Ltd. (1934), 49 B.C.R. 28 (C.A.) and Hodgkinson v. Hodgkinson, 2006 BCCA 158 (CanLII), 2006 BCCA 158, and summarized (at para. 20):

 

From the cases, I conclude 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.

 

[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.

 

In Gibson v. ICBC, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for damages, claiming that the accident was a hit and run. The Plaintiff was awarded damages for pain and suffering, loss of income, and special damages. The Plaintiff appealed the decision, and the Defendant cross-appealed. Shortly after ICBC’S lawyer had cross-appealed, ICBC received an anonymous tip from someone claiming that the accident was not a hit and run. ICBC’S lawyer sought to re-open the trial, and withdraw previous admissions. The Court would not allow the application, stating that the evidence in question (the tip) was an unsworn statement, and that there was no sworn evidence before the Court. The Court further stated that ICBC’S lawyer had failed to show that there would be a miscarriage of justice without a rehearing, and that the new evidence probably would have changed the outcome of the trial.

 

[15]           In Hodgkinson v. Hodgkinson, 2004 BCSC 1630 at para. 2, Dillon J. summarized the law on this subject:

The plaintiff was required to satisfy me on a balance of probabilities that a miscarriage of justice would probably occur without a rehearing and that the evidence or argument that she now wished to present would probably have changed the result of the trial (Vance v. Vance, (1981), 34 B.C.L.R. 209 at 211 (S.C.); Dudas (guardian ad litem of) v. Munro, [1993] B.C.J. No. 2035 at paras. 6-8 (S.C.); B.C. Gas Utility Ltd. v. Alpha Manufacturing Inc., [1999] B.C.J. No.187 at paras. 16-17 (S.C.)).  The wide discretion to reopen should be exercised sparingly and with great care to avoid unwarranted attempts to disturb the basis for a judgment or to permit a litigant to re-establish a broken down case after discovering the effect of a judgment (Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 at 440 (B.C.C.A.); Sykes v. Sykes, [1995] B.C.J. No. 821 at para. 9 (C.A.); Bell v. Bell, [2001] B.C.J. No. 424 at para. 23 (C.A.); 671122 Ontario Ltd. v. Sagaz Industries Canada Ltd., [2001] 2 S.C.R. 983 at para. 60-61 (S.C.C.); Greither v. Greither, [2003] B.C.J. No. 2519 at para. 19 (S.C.)).  The circumstances when the discretion has been exercised to reopen were summarized by Bauman, J. in B.C. Gas Utility Ltd., supra at para. 18.

[17]           The problem is that the evidence that the defendant seeks to introduce in support of this application is very unreliable.  The tipster admits that she was drunk on the day of the accident and that she did not know the plaintiff.  There is no credible evidence from the person who was alleged to have been the driver of the vehicle that was involved in the accident involving the plaintiff.  The defendant is of the view that she would confess to knowing the plaintiff and being involved in the accident if I were to re-open the trial and she was subpoenaed.  I am not sure of that.  In any event, the defendant has failed to satisfy me on a balance of probabilities that a miscarriage of justice would probably occur without a rehearing and that the evidence or argument that it now hopes to present would probably have changed the result of the trial.

[18]           This matter is now before the Court of Appeal.  In the event that the defendant could get an affidavit from Ms. Bradshaw and/or Ms. Izatt, it could make an application before the Court of Appeal for the introduction of fresh evidence.

 

In Mcllvenna v Viebig, the Plaintiff was injured as a child when his bicycle was struck by the Defendant. At Examinations for Discovery, the Defendant testified that he had no eye problems. After the conclusion of the trial, and while awaiting the Court’s Judgment, the Plaintiff’s lawyer obtained MSP printouts of the Defendant, which showed several medical visits with respect to eye problems. The lawyer for the Plaintiff sought to re-open the trial, however ICBC’S lawyer opposed this, saying that the Plaintiff did not do his due diligence. The Court agreed to adjourn the Plaintiff’s application, pending production of the medical records, in essence leaving open the possibility that the trial would be re-opened.

 

[10]           The parties, at least at this stage, do not take issue with the law with respect to re-opening the trial, and accept that it is as set out by Ehrcke J. in Zhu v. Li, 2007 BCSC 1467 (CanLII), 2007 BCSC 1467. 

 

[11]         The plaintiff argues that Mr. Viebig was inaccurate and misleading in response to questions on his examination for discovery in 2004.  First, in response to a question about his health generally, he said that he was “like a grizzly bear, that’s how healthy [he] was”.  Second, in a follow up question about whether he had any difficulty with his hearing or sight or coordination he only responded that he had never seen a doctor because of his ears or coordination problems, and the only thing he had was cancer (of the spine).  He did not mention eye problems, although the plaintiff’s counsel argues that the question required a response about his eyesight.  This may be relevant to the question of due diligence if the application to introduce new evidence proceeds. 

 

[12]         Ms. Wright, for the defendant, opposes the re-opening of the trial on the basis that the material filed on application does not satisfy the test to re-open the trial.  She submits that the plaintiff has not established that there is evidence that would probably have an important influence on the result, or that a miscarriage of justice would probably occur if the trial is not re-opened and that the plaintiff is only on a fishing expedition.  She points out that the plaintiff’s counsel was aware that the defendant wore glasses and there is no basis to suggest that his discovery evidence was misleading.  She argues that the plaintiff’s counsel has failed to demonstrate the required due diligence to secure this evidence in advance of trial. 

 

[13]         The defendant says that, in any event, this application for these additional medical reports is res judicata because production of the general health records was refused at the time of the pre-trial application for the MSP printout.  In short, she argues that the plaintiff has not demonstrated this to be one of the required “exceptional circumstances”.  She points out that the trial is now many years after the event and that there is prejudice to the defendant if the plaintiff is intending to advance a new theory of liability, given the passage of time.  The records of the general practitioner and specialists, once produced, if they still exist, themselves will have no probative value, as they are not admissible for any opinions contained therein.  Ms. Wright argues that the interests in finality in such circumstances require the application to be dismissed.

 

[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.