IN THE SUPREME COURT OF BRITISH COLUMBIA

Date:  20120919

Docket: M096264

Registry:
Vancouver

Between:

Suzanne Marie
Matheson

Plaintiff

And

Kenneth Fichten,
Harmandeep Singh Bahniwal

and BMW Canada
Inc.

Defendants

And

Insurance
Corporation Of British Columbia

Third
Party

Before: The Honourable Madam
Justice Smith

Reasons for Judgment
on Application

[1]
In this action, the plaintiff claims damages for personal injuries and
loss suffered as a result of a motor vehicle accident on September 3,
2009.  On February 10, 2012, Master Baker ordered that the issues of
liability and quantum be severed for the purposes of trial.  Counsel advised
that this severance arose in the context of the plaintiff’s application for an
adjournment.

[2]
I issued Reasons for Judgment on liability (reported at 2012 BCSC 565) on
April 23, 2012, after a three-day trial, apportioning liability 90% to the
defendant Kenneth Fichten and 10% to the defendant Harmandeep Bahniwal.  The
Order has not yet been entered.

[3]
Counsel for the plaintiff and for the defendants Harmandeep Bahniwal and
BMW Canada Inc. appeared on September 7, 2012, on an application to settle
the terms of the Order and for directions.

[4]
Although the Reasons for Judgment state (at para. 5) that there is
no allegation of contributory negligence against the plaintiff, in fact, the
defendant Harmandeep Singh Bahniwal did allege in his pleadings that the
plaintiff was contributorily negligent in that she failed to use her seat belt
or failed to have her head rest properly adjusted.

[5]
Further, the defendants produced evidence on the application that at the
plaintiff’s examination for discovery on November 3, 2011, she admitted
that at the time of the accident she was not wearing the lap and shoulder
seatbelt.

[6]
Despite the pleadings and that admission, the allegation of contributory
negligence was not pursued at the trial.  During the three-day trial, neither
counsel led any evidence bearing on possible contributory negligence on the
part of the plaintiff, nor did counsel for either side refer to contributory
negligence in his submissions.  The plaintiff did not testify and her testimony
at the examination for discovery was not tendered.  There was no medical
evidence with respect to her injuries or with respect to the consequences of
her having failed to utilize the seatbelt.

[7]
Counsel for the defendants conceded that there had been an oversight,
and that contributory negligence should have been addressed at the trial on
liability.

[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,
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, 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.

[10]
An added complication is that although I was the trial judge, I would
not be able to hear further evidence, having now retired from the Court; the
matter would have to be heard by a different Judge of this Court.  However,
even without that complication, in the circumstances of this case I would not
exercise my discretion to permit the trial to be re-opened in order to hear
evidence and submissions on contributory negligence.

[11]
Accordingly, the Order should be entered in the form attached to the
affidavit of Yin S. Murray made on August 28, 2012.

____________ “Lynn Smith J.”_____________
Lynn Smith J.