IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110119

Docket: M032644

Registry:
Vancouver

Between:

Connor Allen McIlvenna

Plaintiff

And

Gerd Julius Viebig

Defendant

Before:
The Honourable Mr. Justice Sigurdson

Reasons for Judgment – Application to Re-Open Trial

[1]            
On January 12, 2011, I heard the plaintiff’s application to re-open a trial. 
The five day liability trial started on August 30, 2010, and completed on September
3, 2010.  Judgment has been reserved.

[2]            
The trial is of the issue of liability arising from a 1995 accident when
the plaintiff, then under 7 years of age, was injured when the bicycle he was
riding collided with the motor vehicle driven by the defendant, Gerd Viebig.

[3]            
The collision occurred at an unmarked, uncontrolled T-intersection,
where a road, now called Library Road, enters the west side of the Tsawwassen
Town Centre Mall and forms a t-intersection with what was referred to as the
north-south road along the mall.

[4]            
The nature of the foliage at or near the intersection, the sight lines
available to the driver and the young cyclist, and location of the collision
were among the issues at trial.

[5]            
The plaintiff’s counsel sought on this application to introduce evidence
that apparently related to the defendant’s eyesight, or perhaps fitness to
drive, at the time of the accident.

[6]            
The basis for the application arises from certain Medical Service Plan (“MSP”)
records that were recently produced to the plaintiff.  The MSP printout for the
defendant from the period January 1, 2003, to August 18, 2010, was produced
prior to the commencement of trial on August 24, 2010.  On October 15, 2010,
counsel for the defendant produced a copy of the defendant’s Medical Services
Plan printout from January 1, 1994, to December 31, 2002, these records having
been received by the defendant’s counsel after the trial on September 28, 2010.

[7]            
In particular, the plaintiff sought to re-open the trial in order to
submit Medical Service Plan records of the defendant for the period January 1,
1994, to December 31, 2002; the complete medical record of Dr. Arthur Shier, a
general practitioner, from January 1, 1994, to the present date; and the
ophthalmology records of various specialists from January 1, 1994, to the
present date that are described in the MSP printout.

[8]            
The plaintiff says that the MSP printout of medical services rendered to
the defendant demonstrates that, in the year before the September 14, 1995,
accident, the defendant saw Dr. Janette Lindley for an ophthalmology
consultation on September 27, 1994.  The apparent consultation with Dr. Lindley
apparently relates, at least according to the standardize coding, to disorders
of the optic nerve and visual pathways.  Mr. Viebig saw Dr. William Ross and Dr.
Duncan Anderson for what is described in the coding reference in the printout as
“retinal disorders or eye tests”.  On October 24, 1994, the MSP printout
appears to indicate that Mr. Viebig saw a radiologist for a head scan.  On
November 15, 1994, there were further entries relating to ophthalmology and
references to tonometry.

[9]            
After the accident, the next entry of a medical attendance possibly relating
to Mr. Viebig’s vision appears to be an ophthalmology consultation with
Drs. Anderson and Lindley on October 6, 1997.

[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.

[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.

“J.S. Sigurdson J.”

The
Honourable Mr. Justice J.S. Sigurdson