IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130222

Docket: M122019

Registry:
Vancouver

Between:

Merima Kostecki

Plaintiff

And

Bin Li and Hai Yun
Wang

Defendants

Before:
The Honourable Mr. Justice Schultes

Oral Ruling re Defence Application to Reopen Case

[1]            
This is an application by the defendant in this trial, Mr. Li, to
reopen his case to prove that the plaintiff, Ms. Kostecki, who now goes by
her married surname of Grace, gave oral statements to a neurologist and a
physiotherapist that are said to be inconsistent with certain aspects of her
direct evidence.

[2]            
The background facts underlying the application can be summarized
briefly. This is an action by Ms. Grace for damages for injuries arising
from a rear‑end vehicle collision in 2010. Liability is not in issue.

[3]            
The critical issues that will have to be determined in the trial are how
long her acute symptoms persisted after the accident, and the extent to which
her chronic symptoms still exist.

[4]            
During Ms. Grace’s cross-examination, Mr. Boswell, counsel for
the defendant, put passages from a letter to her family doctor from Dr. Beckman,
a neurologist who saw her in 2011 for a complaint unrelated to the accident. The
history recorded by Dr. Beckman in his letter can be seen as inconsistent
with Ms. Grace’s evidence of the seriousness of the accident and of the
persistence and seriousness of her ongoing symptoms.

[5]            
In her responses to the questions in cross-examination, Ms. Grace
did not recall this exact conversation, was not sure why Dr. Beckman would
have written those things down, and would not acknowledge that he had necessarily
recorded her statements accurately.

[6]            
Counsel also put an excerpt from the records of Ms. Grace’s
physiotherapist in relation to a visit in February 2011. Following an
indecipherable word, this passage in the records appears to quote her as saying
she was feeling 85% better since the 2010 motor vehicle accident. Ms. Grace
did not deny making that statement, but explained that her quantification of
how much better she was feeling at the time of that visit was compared to the
acute flare-up of her symptoms from the accident for which she had sought that
physiotherapy. It was not a description of the extent of her recovery from the
accident as a whole as of that time.

[7]            
Neither treatment provider was called as a witness in Mr. Li’s case.

[8]            
Following final submissions by counsel on behalf of Ms. Grace, I
raised with both counsel my concern about what use I could properly make of the
potential inconsistencies contained in Dr. Beckman’s letter. I brought
counsel’s attention to the helpful summary of the law on this point given by
Madam Justice MacKenzie, then a judge of this Court, in Cunningham v.
Slubowski, 2003 BCSC 1854, at paras. 14 to 16:

[14]      The defendants may cross-examine the plaintiff on
his prior statements recorded by Dr. Abelman in the clinical records. If
the plaintiff admits that he made a particular statement to Dr. Abelman,
and it is inconsistent with his testimony at trial, the statement can generally
be used only to assess the plaintiff’s credibility. The statement is not
admissible for its truth unless it constitutes an admission against the
plaintiff’s interests. If it is an admission against interest, it is admissible
for the truth of its content, depending on the jury’s assessment of it.

[15]      Also, if the plaintiff admits he made the prior
statement to Dr. Abelman and he adopts it in his testimony, that prior
statement becomes admissible for the truth of its content, depending upon the
jury’s assessment of it.

[16] Of course, if the plaintiff denies having made
the prior statement, a pre-requisite to any of the above results is proof that
he in fact made the statement to Dr. Abelman. This can be established
through the testimony of Dr. Abelman who apparently recorded the statement
when the plaintiff made it.

[Emphasis added.]

[9]            
After reflecting on these rules and on the implication for the case of
the failure to call Dr. Beckman, Mr. Boswell sought an adjournment in
order to make this application. It is made pursuant to Supreme Court Civil Rule
12‑5(3), which provides that if a party omits or fails to prove a
material fact, the court may proceed, subject to that fact being afterwards
proven as the court may direct.

[10]        
Mr. Boswell argues that the failure to call these witnesses is
properly characterized as an error or oversight on his behalf. He points out
that it is a very narrow point on which he seeks to call these witnesses and
that it does not involve him eliciting any new expert or substantive evidence
on behalf of the defendant. He is simply seeking to prove the actual making of
statements that are already in evidence in the clinical records that were
properly admitted and properly put to Ms. Grace. As such, he submits that
the prejudice would be very minimal of allowing him to reopen at this point.

[11]        
Mr. Jiwa, Ms. Grace’s counsel, concedes that Mr. Boswell
could probably have called these witnesses in his case to prove the prior
inconsistent oral statements, and that somewhat of a tactical advantage may now
have accrued to her as a result of the failure to do so. However, he submits
that I should not exercise my discretion to allow the defendant to reopen his
case to call the evidence for the following reasons:

·      
Mr. Boswell has been in possession of the records of these
witnesses for a considerable period of time in the litigation prior to trial and,
given the significance of the admissions contained in them to the theory of the
defendant, he should have anticipated that Ms. Grace might deny or qualify
them and been in a position to prove them, as the law requires. This was
particularly clear, he argues, in light of his indication in his response
before trial to the defendant’s proposed document agreements, in which he
reserved the right to dispute that the statements contained in the records had
been made by Ms. Grace.

·      
In addition, he submits that the proposed evidence is admissible
only on the question of credibility, and therefore does not contain any material
facts, as is required by the rule that governs reopening.

·      
Further, the records themselves have already been admitted as
business records and it is questionable, he submits, what the testimony of
their makers can add to them now. In particular, Dr. Beckman’s office has
apparently advised that he has no further documents or material to rely on,
other than the clinical records that are already in evidence.

[12]        
In short, counsel submits this is not a situation in which the evidence
is necessarily admitted in order to avoid a miscarriage of justice, which has
been defined as one of the necessary elements for reopening in the case
authorities.

[13]        
As an overview, I should point out that, notwithstanding the basis under
which the application was brought, the jurisdiction to reopen is inherent, and
is not restricted to the need to prove a material fact as provided for under
the Rules, either the current rule or its predecessor: Hamilton v. Busch
(1994), 92 B.C.L.R. (2d) 198 (C.A.).

[14]        
The applicable legal principles in an application such as this were
succinctly stated by Madam Justice Ballance in Vander Ende v. Vander Ende,
2010 BCSC 597, at para. 84:

The decision to permit or
disallow reopening is a matter of judicial discretion. The discretion of the
trial judge presiding over a civil trial to reopen the trial before judgment
has been rendered is wide. The scope of the discretion is generally narrower
where judgment has been issued, and the test becomes even more rigorous
depending on whether the order has or has not been entered: G.C.H. v. H.E.H.,
2009 BCSC 4; Clayton v. British American Securities Ltd. (1934), 49
B.C.R. 28 (C.A.); Zhu v. Li, [2007] B.C.J. No. 2150. While the
ambit of the judicial discretion is acknowledged as being unfettered, it must
be exercised cautiously so as to prevent an abuse of process: Clayton;
G.C.H.; K.F.P. v. D.J.P., [2004] B.C.J. No. 782. In considering
whether to reopen, the court should turn its mind to the relevance of the
proposed evidence, the effect, if any, of reopening on the orderly and
expeditious conduct of the trial at large, and most fundamentally, whether the
other party will be prejudiced if the reopening is permitted: R. v. Hayward
(1993), 86 C.C.C.(3d) 193 (Ont. C.A.).

[15]        
Mr. Jiwa quite correctly points out that the seminal Clayton
decision from our Court of Appeal, on which Madam Justice Ballance partly
relied, contains additional requirements:  the power must be exercised
sparingly, and the fundamental consideration is whether a miscarriage of
justice will occur if the additional evidence is not admitted: Stevens v.
Plachta, 2006 BCCA 479.

[16]        
However, even applying these more stringent requirements submitted on
behalf of Ms. Grace, I conclude that it is appropriate to exercise my
discretion to allow Mr. Li to reopen his case to call Dr. Beckman,
for the sole purpose of proving that Ms. Grace made the statements that he
attributed to her in his letter and which she denied on cross-examination.

[17]        
I do not find it necessary or appropriate for him to call the
physiotherapist at this point, as Ms. Grace has admitted the statement to
that person, albeit she has described a different meaning to it.

[18]        
No judgment has been pronounced and only the plaintiff has made
submissions. The cases demonstrate that the discretion is exercised much more
readily prior to judgment.

[19]        
The failure to call this witness originally was due to a simple mistake
by counsel in failing to grasp the evidentiary value of Dr. Beckman’s
report standing alone, if the plaintiff failed to adopt its relevant portions. The
purpose of reopening would only be to remedy that error and to put the
defendant in the position that he would have been in if it had not been made. It
confers no additional benefit beyond this corrective purpose. It represents
proof of statements with which the plaintiff has been confronted, and the only
potential additional evidence will be any explanation by Dr. Beckman of
his process of recording patient histories and any aspects of that process that
might allow him to vouch for the accuracy of the statements he has recorded in
his letter.

[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.

[23]        
Submissions on behalf of the plaintiff can be made from the beginning,
rather than simply dealing with the additional evidence, if Mr. Jiwa concludes
that some advocacy benefit has been lost by the resulting separation in time
from the defendant’s final submissions. I will leave that decision to him.

[24]        
I will ask counsel to please attend at Supreme Court scheduling to
arrange a continuation date suitable to their calendars for the additional
evidence and submissions.

The
Honourable Mr. Justice T.A. Schultes