IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100713

Docket: M053548

Registry:
Vancouver

Between:

Douglas William
Sauer

Plaintiff

And

Kathleen Elizabeth
Scales

Defendant

Before:
The Honourable Mr. Justice Cohen

Ruling

The Application

[1]
This is an application by the plaintiff to introduce fresh evidence as
to the need for an alternative therapy to treat the plaintiff’s injuries.

[2]
In my reasons for judgment dated September 14, 2009, at paragraph 291 I
held that the defendant had to pay the cost of Dr. Karateew’s treatment of the
plaintiff.  However, at paragraph 293 I did not allow the amount claimed by the
plaintiff for structural medicine therapy with Mr. Root.  In making this
finding I said, “While I am mindful that the plaintiff said he found this
therapy beneficial, I agree with the defence that there is no evidence to
support this therapy.”

[3]
In addition, at paragraph 303 I awarded the plaintiff $3,250 to cover
the cost of future care for the plaintiff’s visits to Dr. Mehta, which amount
included the costs associated with the plaintiff’s visits to Dr. Mehta once
every three months for Botox injections.

[4]
At paragraph 304 I held that the plaintiff should be awarded $40,000 to
cover the future care cost of the plaintiff’s treatments with Dr. Karateew less
$6,000 for gum grafting not part of the plaintiff’s rehabilitation plan, and
$5,200 relating to repairs caused by a second accident.

Background to the Application

[5]
In his letter to plaintiff’s counsel dated January 29, 2010, Dr. Mehta
wrote, inter alia, as follows:

I have reviewed with Mr. Sauer
and continue to be involved in his care.  I have recommended continuing
conservative management for Mr. Sauer.  He will continue to benefit from the
massage therapy he attends, injections of Botulinum toxin injections as well as
ultimately fixed prosthodontics to address his inadequate occlusal
intercuspation.

I have been administering
Botulinum toxin injections into his muscles associated with mastication on a
schedule approximately every three to six months as needed.  I last injected
Mr. Sauer 100 units of Botulinum toxin on 9^th June 2009.

At that time he had also had some
cortisone injections.  Within several days of these injections he developed
itching sensation throughout the body consistent with allergic reaction lasting
approximately ten days.  I treated him with 50 mg Benedryl four times per day
to alleviate symptoms.  He has continued with lower dose injections of 2.5 to 5
units for his laryngeal dystonia with Dr. Morrison, his otolaryngologist.

As a result of this adverse
effect I decided not to further inject Mr. Sauer with Botulinum toxin and
rather I prescribed an increase to conservative methods to manage the muscles
of mastication with oral appliances, medications and increased physical
modalities such as the neuromuscular massage therapy.  I have fitted Mr. Sauer
with three oral appliance in the past year.

In the past Mr. Sauer has sought
neuromuscular massage therapy with Mr. P. Roach, RMT in Vancouver with some
positive results.  However, Mr. Sauer’s musculature has not been improving as
much as he had hoped for; his occusal intercuspation is still not adequate for
him to chew foods properly and he continues to experience moderate to severe
pain levels which impacts his quality of life.  Fixed prosthodontics is still
considered for Mr. Sauer.  In the interim I would like to continue pursing all
available conservative methods.

Mr. Sauer has also obtained
further treatment with Mr. E. Root, SMS and LMT, of Bellingham, Washington.
Mr. Root is a certified structural medicine specialist and licensed massage
therapist.  Mr. Root’s treatment has been able to supplement and improve upon certain
aspects of treatment Mr. Sauer receives from Mr. Roach.  Given the benefits
thus far I would recommend Mr. Sauer continue working with Mr. Root.

Mr. Sauer reports Mr. Root treats
the orofacial region in a manner that Mr. Roach has not been able to
accomplish at a similar level.  On examination the dentition along the
posterior segments had improved although the teeth were still not in direct
contact not functionally adequate.  He has sought treatment on a two week basis
with more favourable results.  Because Mr. Root utilizes different and
complimentary therapies to those of Mr. Roach I have recommended he continue
working with both clinicians.  We will incorporate Botulinum toxin injections at
a lower dose since he has been able to continue with this treatment for
laryngeal dystonia without adverse effect.

[6]
In his letter dated February 8, 2010, Dr. Karateew wrote to plaintiff’s
counsel, as follows:

Further to my Medical Legal
Reports of April 18, 2007, October 31, 2007 and March 10, 2008 I confirm that
in those reports I only addressed the cost of proposed treatment and not the
future costs of minting the dental work.

There is of course the necessity
of periodic removal of some of these crowns due to failure due to decay and/or
endodontic problems over the course of his life.  The literature supports this
statement as it has been shown that approximately 30 – 35% of crown and bridge
will fail within 10-15 years of being placed.  (Glantz 1993 JPD).  This failure
will result in the work having to be redone and with escalating fees operating
expenses, this will be at a higher cost.  Additionally, at times the scope of
the work to be redone is more complex as the situation will have changed with
time, perhaps teeth will have to be removed and replaced with dental implants
or have ancillary work (endodontic or periodontic therapy) completed to them to
make them usable.

[7]
In his affidavit sworn February 10, 2010, the plaintiff deposed, inter
alia, as follows:

2.         I was first treated by
Mr. Eric Charles Root in October 2008.  He was recommended by my daughter,
Juliana Friesen, who came to know of his reputation through doctors at Western
Washington University Hospital where she worked as a Registered Nurse.

3.         I researched Eric Root
through the Washington State Department of Health.  He is a licensed Massage
Therapist in good standing with the Washington State Department of Health and
he has been certified as a Structural Medicine Specialist by the Institute of
Structural Medicine in Washington State by completing a three year
certification process after he became a Licensed Massage Therapist.  I looked
without success for someone locally who could provide the same treatment for me
as Mr. Root and I am not aware that his particular type of services are
provided by anyone in B.C.

4.         From my research and
discussions with Eric Root I understand that his therapy focuses on very
targeted manipulation of the connective tissue or fascia which surrounds
muscle, nerves and bone in order to free up movement and break down adhesions
of fascia to bone, muscles and nerve pathways that contribute significantly to
pain.

5.         After commencing treatments with Eric Root I
noticed immediate improvement of areas which were not helped appreciably by
conventional neuromuscular massage therapy.  These areas included my:

a)         left arm, shoulder and
neck which I understand are all part of my thoracic outlet syndrome,

b)         measurable improvement
in my ability to close my teeth normally, and

c)         reduction in the
severity and frequency of my chronic headaches and muscle spasm and pain with
the result that I am using less strong pain medication.

6.         Eric Root’s treatments are far more specific and
delicate that those of Peter Roach, my usual registered massage therapist in
Vancouver, and the benefits I receive from them seem to last for many days.  I
am advised by Mr. Root that he uses specific myofascial release techniques
to facilitate movement and reorganization of my fascia.  He will follow what feels
like neural pathways, for example my trigeminal nerve in my face and jaw,
loosening and aligning the fascia as he goes, with real improvement in my
symptoms.

7.         Mr. Root uses a specific therapy on the muscles
and nerves of my face and jaw by going inside my mouth to work on those muscles
and nerves in particular ways that provide relief which Mr. Roach has not been
able to do.

8.         In my experience, Eric Root’s therapy has been a
very beneficial supplement to the usual neuromuscular massage therapy of Mr.
Roach.  It is not that Mr. Roach’s therapy is not necessary or helpful; it
is just that Mr. Root can add to it in significant ways which are
improving my health.

9.         Dr. Mehta has advised me that I should obtain
therapy from both Eric Root and Peter Roach because he is at present reluctant
to carry on with my botox therapy after I had a very severe allergic-like
reaction in June 2009 to botox injections into the muscles of my face, jaw and
neck by Dr. Mehta.

10.       My reaction to these last botox injections from Dr.
Mehta was terrifying.  I developed a severe, itchy rash which consisted of
raised red pimples with little white centres, all over my body.  The itching
was almost unbearable.  I felt short of breath and many of my muscles were in
spasm including the ones in my throat which really aggravated my laryngeal
dystonia.

11.       Dr. Mehta put me on 50 mg of Benedryl 4 times per
day which helped with the itching but made me exhausted and very fuzzy-headed –
I couldn’t safely drive a car for about 10 days.  I spent most of those 10 days
in a sleep-like state.  I was very fearful, particularly because it made me
light-headed and dizzy, and those are symptoms of my heart problems, so I
became very worried about the stress inducing another heart attack.

12.       I am very afraid of having another set of botox
injections by Mehta.  I am still getting injections of a tiny amount of botox
for mylaryngeal dystonia which I absolutely must have in order to live.  But,
Dr. Mehta gives me injections of 40 times as much botox as I get for my
laryngeal dystonia.  I am aware of the dosage differences because I have to
purchase the botox myself.

13.       Because of the negative physical allergic-like
reaction I had and my fear of suffering another similar reaction, or worse, if
I get injected with botox again by Dr. Mehta, Dr. Mehta really wants me to
pursue the combined “conservative” approach offered by Mr. Root and Mr. Roach.

…

18.       I have not been offered
any alternatives to address my jaw and facial pain and headaches which
definitely become worse when I am not receiving treatment.  While I resent the
time, distance, expense and disruption to my family life and ability to be away
from town from time to time that this therapy of necessity requires, receiving
this therapy from Mr. Root does allow me to engage and relate normally with my
wife, children, and grandchildren and to exercise regularly, as opposed to my
being irritable and retreating to my room.

[8]
The basis of the plaintiff’s application is that since the time of trial
circumstances for the plaintiff have changed.  He claims that Botox, which was
a critical factor in the treatment of his injury, has resulted in an allergic
reaction and therefore can no longer play a significant role in his treatment
for his TMJ problem.  He submits that the circumstance is a supervening event
post judgment which threatens to falsify the damage award for this injury and
that it was not something that the plaintiff could anticipate and therefore
could not have been brought to the Court’s attention during the trial.

[9]
The plaintiff argues that to ignore his evidence and that of Dr. Mehta
about this circumstance would result in a miscarriage of justice.  Additionally,
the plaintiff notes that the formal order for judgment has not been entered;
there is no fraud or abuse of the Court’s process; the evidence as to the
allergic reaction would change the result of the judgment as the Court would
have awarded the plaintiff the cost for replacement treatment; if the evidence
as to alternative treatment is not admitted, the result will be that the
plaintiff is left with no treatment for his TMJ injury; the evidence on this
point is credible, given by a physician whose evidence was accepted at trial;
the evidence could not have been obtained with reasonable diligence for use at
the trial because the plaintiff’s allergic reaction to Botox arose after the
trial concluded.

[10]
With respect to the application to introduce fresh evidence relating to
the cost of maintaining/replacement of crowns, plaintiff’s counsel submits that
in dealing with Dr. Karateew post trial relating to another TMJ file, he became
aware of the ongoing need to repair crowns, which is part of restoring the bite
of individuals with TMJ problems, and the frequency and cost associated with
such repairs.  Counsel claims that this information was not previously known to
him and while available it was not included by Dr. Karateew in his report.

The Defence Position

[11]
The defendant submits that it would be highly unusual to allow the
plaintiff to introduce fresh evidence at this late stage in the proceedings.  The
defence argues that the plaintiff is attempting to reargue issues disposed of
at the trial by introducing additional evidence, and that in effect what is
being asked for is a “second kick at the can”.

Issue

[12]
The issue for me to decide is whether the plaintiff should be allowed to
introduce fresh evidence in the following two categories:

1.       evidence of his Botox allergy and his need
for an alternate treatment

2.       evidence
of his need for further dental work.

Discussion

[13]
Where a plaintiff can prove, on a balance of probabilities, that a
miscarriage of justice would probably occur without the hearing of new evidence
and that the evidence would probably have an important influence on the result,
a judge may exercise their discretion to admit the evidence: Vance v. Vance (1981),
34 B.C.L.R. 209, [1982] 2 W.W.R. 472 (S.C.); Blue Meadows Estates Ltd. v.
Zipursky (1978), 7 C.P.C. 51 (B.C.S.C.). The fundamental
consideration is whether a miscarriage of justice would occur if the new
evidence was not heard: see Bell v. Bell, 2001 BCCA 148, 153 B.C.A.C.
10, and Stevens v. Plachta, 2006 BCCA 479, 58 B.C.L.R. (4th) 69.

[14]
The defendant emphasizes that this discretion must be exercised
sparingly and only in exceptional circumstances.  The authorities cited by the
defendant relate primarily to situations where a party seeks to introduce
evidence that was available at the time of the trial and that would not likely
have changed the result.  In 671122 Ontario Ltd. v. Sagaz Industries Canada
Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, the trial judge could not conclude
that the new evidence, if presented at trial, would probably have changed the
result. He also found that the evidence could have been obtained before the
trial.  In Sykes v. Sykes (1995), 58 B.C.A.C. 294, 6 B.C.L.R. (3d) 296, the
Court of Appeal found that the application to re-open the case was based solely
on a decision to advance an alternative argument which could easily have been
made at the time of the original trial.  In Stevens v. Plachta, Mandzuk v. Vieira (1983), 43 B.C.L.R.
347, 34 C.P.C. 222 (S.C.), and Mohajeriko v. Gandomi, 2010 BCSC 60, the
evidence sought to be introduced had been available before the trial.  In
Waters v. Bains, 2009 BCSC 298, and G.C.H. v. H.E.H., 2009 BCSC 4, 64 R.F.L. (6th) 408, the evidence was
available at the time of trial and the court also found that the evidence would
not have changed the result.

[15]
In Zhu v. Li, 2007 BCSC 1467, 43 R.F.L. (6th) 376, Ehrcke J.
provided a helpful summary of the circumstances under which a judge should
exercise their discretion to admit fresh evidence:

[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.

[16]
The plaintiff argues that these criteria are met in the present application.
He  relies on the court’s decision in Monahan Estate v. Nelson, 2000 BCCA 297, 137 B.C.A.C. 251, to argue that where a
supervening event occurs that will falsify the court’s previous assessment, a
miscarriage of justice will occur if the judge does not allow further evidence
to be introduced.  In Tiwana v. Popove (1988), 23 B.C.L.R. (2d) 392
(S.C.), the court exercised its discretion to permit the introduction of fresh
evidence.  The plaintiff had been awarded damages for soft tissue injury sustained
in a motor vehicle accident.  Following judgment the plaintiff received
treatment from a specialist and underwent surgery.  During the course of
treatment and surgery, it was discovered that the plaintiff had suffered
additional pain and injury as a result of the accident and the plaintiff
applied to introduce the evidence of his specialists so as to vary the damages
award.  The court allowed the introduction of the evidence, stating that
“…if the applicant is not permitted to introduce the evidence alluded to, there
may very well be a miscarriage of justice” (at 394).

Decision

[17]
I am satisfied that the plaintiff has proven, on a balance of
probabilities, that a miscarriage of justice would occur without the
introduction of the fresh evidence relating to his allergic reaction to Botox
and his need for alternative therapy.

[18]
It is clear from the material before me that this is not a situation
where the plaintiff could have made the submission and argument he now seeks to
make on this point at the time of the trial.  In Spoor v. Nicholls, 2001
BCCA 426, 90 B.C.L.R. (3d) 88, the Court confirmed that:

[16]  … It is fundamental to
allowing a party to adduce additional evidence after closing their case (other
than proper reply or surrebutal evidence) that the additional evidence be of
such a nature that, when they initially prepared and presented their case, the
evidence was not known to the party or not discoverable on reasonable enquiry.

[19]
I think the above passage from Spoor supports the plaintiff’s
position that where evidence was not known to a party at the time when they
initially argued their case, it may be fair for a trial judge to allow the
evidence to be introduced even after the close of the trial.

[20]
In my opinion, there is compelling evidence before me of a supervening
event that may change the result of the Court’s award for the plaintiff’s cost
of future care.  Moreover, I am satisfied on the authorities that it is within
the jurisdiction of the Court to allow the introduction of fresh opinion
evidence to address a circumstance such as the one raised by the plaintiff in
the instant case.

[21]
In the result, I find that the plaintiff should be permitted to
introduce his and the evidence of Dr. Mehta on the issue of the plaintiff’s
cost of future care for alternative therapy for his TMJ injury.

[22]
However, I am not satisfied that the plaintiff’s application to
introduce the fresh evidence of Dr. Karateew should be permitted.  On
plaintiff’s counsel’s own submission, this evidence was clearly available at
the time of trial when the plaintiff prepared and presented his evidence on
this topic.

[23]
Finally, I am prepared to entertain a submission from the defence on
whether the plaintiff should receive his costs for this application or those
associated with the introduction of the fresh evidence at a hearing should the
defence wish to cross-examine the plaintiff or Dr. Mehta on their evidence.  In
this regard, I note as follows:

1.       The
trial concluded with closing submissions on April 22, 2009;

2.       The
plaintiff had a very severe allergic-like reaction in June 2009 to Botox
injections into the muscles of his face, jaw and neck.  He developed a severe,
itchy rash.  The itching was unbearable and he felt short of breath;

3.       A
hearing was held on November 4, 2009, to deal with the defendant’s application
seeking a deduction from the cost of future care award pursuant to s. 83(5) of
the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231;

4.       The
Court’s ruling on the application was made December 11, 2009;

5.       Despite
the plaintiff’s evidence of his allergic-like reaction in June 2009 and the
consequences he experienced as a result of the reaction, no mention was made of
this fact post trial until the plaintiff brought his application to introduce
fresh evidence by filing a Notice of Motion for this relief on February 22,
2010.

[24]
I believe the above background should be taken into consideration with
regard to costs, especially given the fact that the plaintiff did not raise
this fresh evidence when his counsel addressed the defence position regarding a
deduction from the cost of future care award.  According to the plaintiff’s
evidence the “supervening event” upon which he now relies is the allergic-like
reaction to Botox in June 2009, an event which took place well before the
November hearing.

[25]
In conclusion, the plaintiff is permitted to introduce fresh evidence
with respect to Mr. Root’s therapy, but not with respect to Dr. Karateew.  I
make no award at this time on costs pending receipt of any submission that the
defendant may wish to make on this point.

“B.I. Cohen J.”

The Honourable Mr.
Justice B.I. Cohen