IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150113

Docket: M131196

Registry:
New Westminster

Between:

Daniel Thompson

Plaintiff

And

Siu Choi and
Assoc. of Neighbourhood Houses

Defendants

Before:
The Honourable Mr. Justice N. Brown

Reasons for Judgment

I.      
Plaintiff’s Application

[1]            
Mr. Thompson is the plaintiff in an action for damages stemming
from a motor vehicle accident. He applies for an order permitting him to give
rebuttal evidence to testimony given by a defence witness, Mr. Craig
Barone, on July 25, 2014. He also applies for an order permitting him to put
into evidence copies of his pay stubs from two roofing companies, Alpha Roofing
& Sheet Metal Inc. and Duron Pacific Restoration Ltd. (collectively, “Alpha-Duron”),
from March 2009 to about June 4, 2009, which show the particulars of all the
earnings and benefits received during that period. These reasons address these
applications.

A.    Rules Relied on

[2]            
The plaintiff relies on Rules 1-3, 7-1(1), 7-1(11), 8-1, 12-5(3), 13-1,
14-1, 22-1 and 22-2 of the Supreme Court Civil Rules.

B.    Factual Basis for Application

[3]            
The plaintiff provides the following factual basis for the rebuttal application:

a)    Mr. Barone
gave evidence on an important factual issue with documentary evidence that the
plaintiff did not have an opportunity to review or respond to.

b)    “Will say”
statements were exchanged pursuant to a trial management conference order given
June 18, 2014.

c)     Mr. Barone’s
“will-say” statement did not state he would rely on copies of the plaintiff’s time
cards and alleged page or pages from the Sheraton-Four Seasons Hotel
(“Sheraton”) security log.

d)    Copies of the
Alpha-Duron time cards and the Sheraton security log were not listed as
documents prior to trial; and, the plaintiff says, he had no opportunity to
question or verify their authenticity.

e)   
The plaintiff submits the defendants knew or ought to have known before
the trial what documents Mr. Barone intended to rely upon to support his
testimony based on the following statement in Mr. Barone’s “will-say”
statement:

Mr. Barone, during this
period of time, determined that the Plaintiff was signing time cards which did
not properly reflect the time of arrival and departure at the job site. When Mr. Barone
confronted the Plaintiff with that information, Mr. Barone told the Plaintiff
to pack up his tools because he was done.

f)      The
plaintiff says he was taken completely by surprise [although the clear
reference to time cards in Mr. Barone’s “will-say” statement is noteworthy].

g)    The plaintiff
submits the defendants knew Mr. Barone’s evidence might substantially
affect the outcome of the plaintiff’s past loss of income claim after he was
laid off from Alpha-Duron on June 4, 2009, and submits they owed a duty to
produce such documents prior to trial.

[4]            
The plaintiff swore an affidavit December 8, 2014, in which he largely reframes
testimony he gave at trial regarding reasons for his lay off from his
employment at Alpha-Duron. Plaintiff’s counsel explained why the affidavit was
so late, which relates partly to the fact the plaintiff lives in Kamloops. At para. 2
of his affidavit, the plaintiff states:

What came as a complete surprise
to me and my counsel during the trial was Mr. Barone’s reliance on,
allegedly, copies of one or more of my time cards together with what he said
was a copy of a page or pages of the Sheraton security log, none of which had
been produced prior to the trial and none of which was shown to me when I
testified, or even when Mr. Barone testified. Because of his reliance [on]
those documents my concern has been that [the] court would be misled and
erroneously conclude that I was “dismissed” by Mr. Barone based on
discrepancies between my time cards and the security log.

[5]            
The plaintiff testified at trial that he was laid off because his
production was too low, a fact he attributes to injuries caused by the motor
vehicle accident.

[6]            
At para. 8 of his affidavit, Mr. Thompson deposes “… there was
absolutely no prior notice given to me or my counsel prior to the trial, or
even when I gave my testimony, that Mr. Barone would produce such
documents in an effort to prove any of the assertions put forward in the Will Say
statement.”

[7]            
I note from the plaintiff’s affidavit that after the trial ended, his
counsel sought to obtain access to the Sheraton security logbook, but its
keepers advised his counsel it was no longer available.

[8]            
At para. 21, the plaintiff states that he feels the court will be
misled by many of Mr. Barone’s statements, adding he “would like some
opportunity to determine the various particulars of [the] documents to better
enable [him] to determine what [he] actually did on particular work days
recorded on the time cards and in the log book referred to by Mr. Barone.”

[9]            
Finally, in para. 15, the plaintiff lists a number of things that,
in the very least, he would like to have the opportunity to clarify. I note
that the list encompasses matters already addressed in the plaintiff’s
testimony, to which Mr. Barone’s evidence stands opposed.

[10]        
As mentioned previously, the plaintiff is also applying for an order
permitting him to enter as evidence certain Alpha-Duron pay stubs he has
recently found. In this regard, the plaintiff states at para. 20 of his
affidavit that on his return to Kamloops on July 25, 2014, he was advised the
Alpha-Duron pay stubs he produced for trial were incomplete. He deposes that
“[b]ecause of my financial situation and job opportunities, my family and I had
to make a number of residential moves since 2009, and they had become
misplaced. I made a thorough search through many boxes of old papers and
eventually found the missing pay stubs, and sent them to my counsel in around
September 2014.” The plaintiff attaches to his affidavit pay stubs for the
two-week pay period ending March 21, 2009 until his June 4, 2009 lay off. He
notes that the pay stubs do not include a record of reimbursement for parking
expenses during this period, when he was working at the Sheraton in downtown
Vancouver. (This could be relevant to Mr. Barone’s assertion workers were
reimbursed for parking while working downtown.)

C.    Defendants’ Position

[11]        
The defendants respond as follows:

a)    The plaintiff
cannot say Mr. Barone’s testimony took him by surprise. If, as the
plaintiff asserts, Mr. Barone’s “will say” statement made it clear to the
defendants that Mr. Barone’s evidence might substantially affect the
plaintiff’s past loss of income claim, it was equally clear to the plaintiff.

b)    The plaintiff,
knowing the significance of Mr. Barone’s testimony, could have spoken to Mr. Barone
before he testified, but elected not to do so.

c)     The defendants
never had in their possession any employment documents other than what had been
obtained and produced by the plaintiff.

d)    The Alpha-Duron
pay stubs are not complete for the period between March and June 2009 but, the
defendant says, the plaintiff failed to obtain those documents to help prove
the loss during that period.

e)    While in the
witness box, Mr. Barone told the court that before appearing, he reviewed
time cards to confirm the details of his recollection of what led to the
plaintiff being let go from Alpha-Duron. He produced the time cards and the plaintiff’s
counsel had an opportunity to review them.

f)     
The defendants submit that Mr. Barone did not rely on the documents,
but used them only to confirm his own recollection of events that led up to and
included his decision to let the plaintiff go. At para. 6 of the application
response, the defendants submit:

Thus, [Mr. Barone] gave
specific testimony recalling why he had concerns upon his return from vacation
and what steps he took to investigate those concerns. He testified that he
recalled comparing the Plaintiff’s time cards with the security logs and he
testified about actually seeing the Plaintiff leaving the site earlier than the
regular quitting time.

g)   
The defendants further submit that irrespective of the documents the
witness reviewed, it would not alter the fact he decided to dismiss the
plaintiff for reasons that had nothing to do with any impairment or disability
the plaintiff contends led to his dismissal. In that regard, the defendants
submit in para. 7 of the application response that “[t]he plaintiff in
direct and cross examination made it clear that he had differences with Mr. Barone
about when and where shifts started and ended, but [the plaintiff] clearly lost
that argument with his employer.” In addition, the defendants point out that, in
direct and cross-examination, the plaintiff addressed the matter of his
differences with Mr. Barone over the reasons for his dismissal.

h)   
The defendants submit additional evidence from the plaintiff would not dislodge
Mr. Barone from his testimonial position. For this reason, the defendants
submit that what the plaintiff proposes to adduce would have little probative
value, and accordingly, no injustice is likely to result.

i)      
The defendants further submit the plaintiff has in effect not applied to
re-open his case to allow him to produce evidence about a material fact, but rather
seeks to re-open to re-express his opinion as to why Mr. Barone was
mistaken. This would not constitute proper rebuttal. The defendants point out
that the plaintiff was present in the courtroom throughout Mr. Barone’s
testimony and that he and his counsel ought to have considered rebuttal
evidence at that time by way of re-examination of the plaintiff (although the
defendant asserts the plaintiff had already given such evidence in his direct
and cross-examination and it ought not have been allowed in any event).

D.    Legal Principles

[12]        
The court will permit rebuttal evidence only when it is necessary to
insure that at the end of the day each party will have had an equal opportunity
to hear and respond to the full submissions of the other: R. v. Krause,
[1986] 2 S.C.R. 466 at 474; R. v. Aalders, [1993] 2 S.C.R. 482 at 497; E.R.M.
v. Clarke, 2001 BCSC 676 at paras. 11-12.

[13]        
The plaintiff relies on Lowe v. Jenkinson (1995), 5 B.C.L.R. (3d)
195 (S.C.), where Justice Fraser decided to allow the plaintiff to introduce
further evidence after the parties had closed their cases but before final
argument. At para. 25, Fraser J. states that, “[t]he disposition of an
important factual issue could be assisted by the admission of additional
evidence.” At para. 26, Fraser J. states, “I see it as unimportant whether
the admission of this evidence is treated as the reopening of the plaintiff’s
case or as rebuttal, although I tend to the view that it is rebuttal.”

[14]        
On the procedural aspects of the issue, the defendants refer the court
to two concise textbook statements. In Gordon D. Cudmore, Civil Evidence
Handbook, looseleaf (Toronto: Carswell, 1987), the author states:

As a general rule, all matters
which are properly part of the plaintiff’s case in chief are to be excluded
from reply evidence. Such evidence is to be limited to matters necessary to
contradict or qualify new evidence raised during a case for the defence.

[15]        
In Sidney N. Lederman et al., Sopinka, Lederman & Bryant: The Law
of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis Canada, 2014) at
1190, the authors state:

At the close of the defendant’s
case, the plaintiff or Crown has the right to adduce rebuttal evidence to
contradict or qualify new fact issues raised in defence. The general rule in civil
cases is that matters which might properly be considered to form part of the
plaintiff’s case in chief are to be excluded.

[16]        
The defendants also referred to three British Columbia cases that
further address the appropriate use of the court’s discretion to permit a party
to re-open their case or to call rebuttal evidence, as the case may be, two
procedural steps that are partially joined at the conceptual hip.

[17]        
In Stevens v. Plachta, 2006 BCCA 479, Justice Levine, for the
court, explains the proper use of the court’s discretion to re-open a trial to
hear further evidence:

[15]      It is clear that a trial judge has a wide
discretion to re-open a trial to hear further evidence, but the power is to be
used sparingly: Clayton v. British American Securities Ltd., [1934] 3
W.W.R. 257 (B.C.C.A.); Sykes v. Sykes (1995), 6 B.C.L.R. (3d) 296
(C.A.). The fundamental consideration in exercising the discretion to re-open a
trial is whether a miscarriage of justice would occur if the trial were not
re-opened: see Bell v. Bell, 2001 BCCA 148.

[16]      The trial judge’s ruling that the plaintiff could
re-open her case was premised, at first, on his conclusion that the plaintiff
had been taken by surprise by the defendants’ position that the second accident
had caused or contributed to her injuries. In later discussions with counsel,
the trial judge noted that "we spent a great deal of time dealing with the
question of the second accident" during the trial, and that whether the
plaintiff was surprised was not really the question. He said: "The
question is whether parties can rely upon the pleadings to accurately set out…what
case they have to meet."

[17]      As already noted, the plaintiff was not surprised
by the defendants’ position with respect to the second accident. The amendment
to the pleadings could not be justified on that basis, nor on the basis that
the pleadings were not clear. In all of the circumstances, there was no basis
to conclude that there would be a miscarriage of justice if the plaintiff was
not allowed to re-open her case.

[18]      Further, the effect of
allowing the plaintiff to re-open her case was to allow her to put her case
twice, which distorted the trial process: see Mandzuk v. Vieira (1983),
43 B.C.L.R. 347 (S.C.), Spoor v. Nicholls (2001), B.C.L.R. (3d) 88, 2001
BCCA 426. The evidence necessary to deal with the effect of the second accident
on the plaintiff’s injuries was available before the trial. The plaintiff must
be taken to have chosen to put in her case as she did, without dealing directly
with the second accident. There was no reason to allow her to re-open her case,
and it was an error to do so.

[18]        
The second case cited by the defendant is Kostecki v. Li, 2013
BCSC 2451, where Justice Schultes relies upon Justice Ballance’s review of the
relevant principles bearing on the exercise of the court’s discretion:

[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.).

[19]        
The third case cited by the defendant is Spoor v. Nicholls, 2001
BCCA 426, where Justice Low, addressing the re-opening of the plaintiff’s case
in a civil case, notes in part:

[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 ….
The criteria necessary to permitting the application to adduce fresh evidence
are set out in the criminal case of Palmer and Palmer v. The Queen
(1979), 106 D.L.R. (3d) 212 (S.C.C.) which often has been applied in civil
cases, and those criteria were not met in this case. Indeed, in Palmer
the court said that the due diligence test should be applied more strictly in
civil than in criminal cases. The trial process in the present case was distorted
to the detriment of the appellants.

[20]        
I note that in the Palmer decision cited by Low J.A., three of
the criteria mentioned are that the evidence must be relevant in the sense that
it bears upon a decisive or potentially decisive issue in the trial, must be
credible in the sense that it is reasonably capable of belief, and must be such
that, if believed, could reasonably, when taken with the other evidence adduced
at trial, be expected to have affected the result.

II.    
Ruling

[21]        
In my view, the following considerations are relevant to the exercise of
the court’s discretion in this case:

§ 
the plaintiff brought this application nearly five months after
the last day of trial;

§ 
no objection was raised at the time of trial, nor was an
adjournment requested to review the timecards;

§ 
the trial was adjourned to December 17, 2014 to accommodate
further oral submissions supplementary to written submissions;

§ 
no application was brought post-trial to seek production of the
Sheraton records;

§ 
the court was not advised of the plaintiff’s intention to seek a right
to re-open the plaintiff’s case and to testify until mid-December 2014; and

§ 
the plaintiff’s affidavit largely reframes matters already
addressed in testimony he gave at trial.

[22]        
In my view, it would not be accurate to say Mr. Barone’s testimony
caught the plaintiff totally by surprise. Given the tenor of Mr. Barone’s “will
say” statement, the potential significance of his testimony and its possible
scope was obvious. The plaintiff could have interviewed, deposed, or at a minimum
spoken to Mr. Barone at the courthouse before he testified.

[23]        
The fact that the relevant records were not left in evidence arguably
limits, or perhaps obviates, any probative value they might otherwise have. Mr. Barone
evidently testified for the most part from memory, having referred to the
Sheraton security records and time codes to assure him his memory was accurate.
If a copy of a relevant record is not put into evidence, it has no evidentiary
value. If the time cards were available for inspection at trial, but not
entered, their evidentiary value is limited, at best, perhaps leaving open the
door for an inference to flow from the fact of a party’s lack of contestation. The
fact is the plaintiff put his theory for his dismissal to Mr. Barone on
cross-examination; he rejected it. Mr. Barone clearly had his mind firmly made
up and was not open to agreeing with the plaintiff’s theory.

[24]        
I should point out that Mr. Barone is not a party to the action.
There is nothing to show the court that the defendants had possession or
control over the time cards or the Sheraton security book; indeed this is
unlikely. As between the parties, the plaintiff is arguably the party who ought
to have listed the time cards as a document he could obtain, and he had some
claim to see the time cards and to have them copied and delivered to him.

[25]        
A number of cases have discussed how the court should proceed when a
witness, not a party, comes to testify with documents in hand that the opposing
party has never seen, and over which the party calling the witness had not
previously seen, or had no power of control. It is not uncommon for a witness
to possess a relevant document unknown to either party. In some circumstances,
counsel may be aware a witness has a probative document, but wish to maintain
privilege over it so they can ‘spring it’ on an unsuspecting witness to prove a
lie. Fairly similar issues arose in a civil jury that necessitated a ruling on
admissibility, Sapach v. Schaubroek (January 27, 2014), New Westminster
M134285 (B.C.S.C.). (See also these cases on the point: Cahoon v. Brideaux,
2010 BCCA 228; Stone v. Ellerman, 2009 BCCA 294; Beazley v. Suzuki
Motor Corporation, 2010 BCSC 613; Blake v. Gill, [1996] B.C.J. No. 2041
(S.C.); Helgason v. Bosa, 2010 BCSC 1756; Przbysz v. Crowe, 2011
BCSC 731; Carol v. Gabriel, [1997] B.C.J. No. 2741 (S.C.); and Creed
v. Dorio, [1998] B.C.J. No. 2479 (S.C.). Further, a useful commentary,
one that contends for a particular application of the cases, may also be found
in a publication of the B.C. Trial Lawyers Association: The Verdict magazine,
Issue 140, Spring 2014, at p. 60. The article is entitled “Opposing
Cross-Examination on Unlisted Documents – Rule 7-1(21)”, authored by A.C.R.
Parsons and S.N. Collins.)

[26]        
In the present case, the parties’ respective document production duties
were not argued, so I will not engage the question. I mention it to this extent
to underline the point that it is not by any means made out in the materials before
this Court what duty the defendants did owe to list or produce either the time
cards or the Sheraton security records.

[27]        
In any case, the plaintiff has not persuaded on the balance of
probabilities that the time cards would have assisted the plaintiff to more
clearly articulate the details of his work activities than he has so far
already done. He has already explained his routines at the Sheraton of coming
and going to the worksite, how he reported his start and end times, and so on.
He also explained what entitlements union regulations gave him.

[28]        
Mr. Barone’s evidence opposes an aspect of the plaintiff’s case,
but it constitutes only one portion of the evidence before the court: the reliability
of a witness’s testimony is usually based on more than the contrary testimony
of another witness; the court considers all the evidence in its totality before
coming to conclusions on credibility.

[29]        
The naked fact here is that if the plaintiff thought the matter so vital,
one would expect to have seen him apply forthwith, or at least send the court a
notice, when the matter was still relatively fresh. Instead, he waited nearly
five months and brought this application on the eve of scheduled final
submissions.

[30]        
I will not grant the plaintiff leave to re-open his case to permit him
to obtain and comment on further documents, such as the time cards, and to
review them with the objective of giving further evidence to explain all of his
activities while employed by Alpha-Duron. Even if he were to find something in
the time cards that corresponded with his theory of the dismissal, given the
tenor of Mr. Barone’s evidence, I doubt putting some detail from them before
Mr. Barone could move him to say other than he has, considering especially
that he has based his testimony mostly on his own memory and impressions. Even
if Mr. Barone’s testimony were accepted, it does not prevent the plaintiff
from advancing the core proposition of his case that his productivity levels
are much lower than they ought to be, due to his injuries, and that they have
impaired his capacity to earn income in his trade.

[31]        
Therefore, the plaintiff’s application to give rebuttal evidence to the
evidence of Mr. Barone is dismissed.

[32]        
As for the plaintiff’s application to put into evidence copies of his
pay stubs from Alpha-Duron showing his earnings between March 2009 and about
June 4, 2009, I have decided to allow the plaintiff to submit these payroll
records at the continuation for final submissions. I assume counsel for the
defendants has copies of them since they are attached to the plaintiff’s
affidavit. I hold this door ajar because, based on the description given, Alpha-Duron
produced them in the ordinary course of its business, and the plaintiff had
inadvertently misplaced them. I do not see any prejudice to the defendants, as
they presumably record wages and reimbursements. However, counsel are usually more
attuned to prejudices to their client than a judge looking at the question from
a distance, so counsel may make brief and pointed submissions on
this matter when they next appear and on what relevance, weight, and uses, if
any, to which they can properly be put.

[33]        
The defendants are entitled to their costs, on set, payable as part of
the final disposition at the conclusion of the matter. Costs at that time will
be in any event of the cause. Should the plaintiff be entitled to an additional
award in the event of his having made an offer in excess of the award, the
defendants remain entitled to their costs of the application.

“N.
Brown J.”