IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150918

Docket: M111758

Registry: Vancouver

Between:

Laura Bergen

Plaintiff

And

Justin Gaetz and
Nicholas Mantel

Defendants

– and –

Docket: M126734

Registry:
Vancouver

Between:

Laura Bergen

Plaintiff

And

Rebecca Brooke

Defendant

Before:
The Honourable Mr. Justice Greyell

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: This is an application brought by the plaintiff
seeking to reopen the trial to adduce fresh evidence. The defendant opposes the
application.

[2]            
The application arises in the context of an action for damages brought
by the plaintiff for personal injuries sustained in two motor vehicle
accidents, one of March 2, 2009, the second of November 27, 2010. Both
accidents were rear-end collisions.

[3]            
The actions were heard together at a trial which occur before me between
March 30, 2015, and April 17, 2015. This application has been brought before reasons
for my decision was delivered.

[4]            
The defendants admit liability for the accidents but says in defence
that the plaintiff’s ongoing physical problems which included significant pain
to her lower back and legs which now precludes her from working, are the
product of a pre‑existing injury. The defendants say the plaintiff would
have been in her current status or at least close to her current status
regardless of the injuries sustained in the two accidents.

[5]            
The defendants also say the accidents were low velocity accidents and
could not have caused the plaintiff the injuries for which she now claims.

[6]            
The plaintiff has claimed for non‑pecuniary damages, damages for
lost housekeeping capacity, lost income to the date of trial, loss of future
income, loss of pension income, loss of future care and for special damages.

[7]            
The plaintiff was employed as a Canada Border Services Agent from 2005
to January 2013 when she stopped work as a result of low back pain which
radiated into her left leg. She had been on disability benefits since that time.
At the time of trial the carrier of the benefits, was in the process of
reviewing the plaintiff’s status to receive such benefits.

[8]            
Ms. Bergen’s general status at the time of trial was that she was being
considered for spinal surgery but had elected to take a more conservative
treatment at a pain clinic to determine whether that treatment assisted relieve
her pain before she decided whether to undertake more invasive spine surgery
with an uncertain outcome.

[9]            
Both parties at the trial called evidence concerning Ms. Bergen’s work
capacity. Mr. Philip Towsley, an occupational therapist, was called on behalf
of the plaintiff. Mr. Towsley had done a functional capacity evaluation and had
concluded that Ms. Bergen demonstrated a sedentary to light‑strength
level and had demonstrated limitation sitting, standing and stooping, which
would limit her capacity to perform her work with the CBSA.

[10]        
Mr. Towsley recommended she undertake vocational assessment counselling.
He described Ms. Bergen as having considerable transferable skills.

[11]        
The defendants called Dr. Christopher Cooke. Dr. Cooke had reviewed
Mr. Towsley’s assessment and Sunlife’s disability records and provided his
opinion regarding Ms. Bergen’s vocational potential. He concluded her potential
included potential for retraining and suggested one of the primary focuses for
such vocational exploration would be to obtain suitable alternate employment
with the CBSA.

[12]        
He opined it was possible she would be able to seek an accommodation in
a modified light‑duty position as a border service officer or to transfer
to a different job within her physical abilities and thus maintain her
seniority pension contributions, health care and extended benefits. Dr. Cooke
proceeded to identify positions with the CBSA or other employers with whom he
considered she had transferable skills.

[13]        
The new evidence the plaintiff seeks to introduce is a letter dated June
30, 2015, addressed to her from the Chief of Operations of the Container Examination
Facility which outlines:

Option available under the
treasury board’s directive on leave and special working arrangements.

[14]        
The letter says that leave without pay cannot be granted indefinitely
and that all leave without pay is to be terminated eventually through one of
the following options. Those options are:

Return to duty, retirement on
medical grounds, resignation or retirement for non‑medical reasons, or
release for reasons other than breaches of discipline or misconduct pursuant to
s. 12 of the Financial Administration Act.

[15]        
An attachment to the letter asks Ms. Bergen choose to one of the
following options:

Retirement on medical grounds,
return to duty or resign non‑medical.

[16]        
The letter attaches a Treasury Board of Canada directive on leave and
special working conditions.

[17]        
Ms. Bergen responded to that letter on July 22nd, 2015, advising the
author of the letter, Ms. Pinvidic, that she was unable to complete the
elections as she was actively seeking treatment. She requested an extension in
order to allow that treatment to continue.

[18]        
The defendants say the letter is not new evidence and in any event is
ambiguous and does not affect the outcome of the case.

[19]        
The parties agree on the applicable principles to be applied as
summarized by Mr. Justice Ehrcke in Zhu v. Li, 2007 BCSC 1467 at
paragraph 30.

[20]        
Upon my review of the principles outlined in that paragraph I am
satisfied the plaintiff has satisfied the tests for admission of the evidence.

[21]        
Prior to the entry of the formal order the trial judge has a wide
discretion to reopen the trial to hear new evidence, but such discretion should
be exercised sparingly and with the greatest care so as to prevent fraud and
abuse of the court’s process. This is no issue in this application of fraud or abuse
of the court’s procession.

[22]        
The letter was issued after the conclusion of the trial and potentially
relates to one of the live issues which I must determine, that is loss of
future income.

[23]        
The onus is on the applicant to show first that a miscarriage of justice
would probably occur if the trial is not reopened, and second, that the new
evidence would probably change the result. While it is difficult to say the
degree to which the letter might change the result in this case, the letter in
my view is clearly relevant to the issue of lost earnings by Ms. Bergen and may
very well affect the amount of damages under this heading.

[24]        
The credibility of the proposed fresh evidence is a relevant
consideration in deciding whether its admission would probably change the
result. There is no issue as to the credibility of the information contained in
the letter.

[25]        
The letter, being dated well subsequent to the closure of trial, is not
evidence which could have been presented at trial. At trial Ms. Bergen was not
clearly presented with the options as outlined in the letter.

[26]        
Accordingly it is my view the letter should be admitted in evidence. The
interpretation and effect of the letter can be addressed by counsel during
argument, and to that effect I direct counsel to attend scheduling to arrange a
date when such argument might occur.

[27]        
I do not see the necessity for there to be further evidence. Indeed
there is no application before me that there be further evidence. Counsel for
the defendants suggested that there might be a need for further evidence, but
frankly I do not see the necessity for there to be further evidence, subject to
what counsel for the defendants might submit.

[28]        
It seems to me that both Mr. Towsley and Dr. Cooke in their evidence
addressed Ms. Bergen’s future options in terms of work that may or may not
available to her.

[29]        
Counsel, are there any matters arising from these reasons?

[30]        
MS. ANJOS:  No, My Lord.

[31]        
THE COURT:  Mr. Burgoyne.

[32]        
MR. BURGOYNE:  Well, My Lord, I think I need to think about this. The
direction that the ‑‑ essentially we attend to reargue without the
need for further evidence obviously is not the ‑‑ not consistent
with the submissions that I immediate to you earlier. And with your indulgence
may I have a couple days to think about that and get instructions on it?

[33]        
THE COURT:  You certainly may.

[34]        
MR. BURGOYNE:  Thank you, My Lord.

[35]        
THE COURT:  Yes. Let us ‑‑ so the case is becoming dated, so
I ‑‑

[36]        
MR. BURGOYNE:  No, I am alive to that. I should advise you that just in
terms of scheduling problems I am aware at the end of next week for ten days
and when I come back I am going in to trial actually. I am pretty much tied up
until the end of October. But after that I think in November ‑‑ I
do not have a schedule with me, but my colleague Ms. De Baie has ‑‑
I know that she is very busy for the first part of next month. So
[indiscernible] to do anything within the period of say four or five weeks, but
after that hopefully we should be able to set a date.

[37]        
THE COURT:  Well, I think the first matter to determine is whether.

[38]        
MR. BURGOYNE:  Whether I am going to ‑‑

[39]        
THE COURT:  Yes.

[40]        
MR. BURGOYNE:  So can I ‑‑ would it be possible for me to
consider this over the next few days?  I leave on ‑‑ the 30th of
next week is my last day. If we were to contact the registry before the end of
next week and advise if we ‑‑ if I decided to appear before you to
make further submissions on the need for reopening the trial, which would be
for discovery.

[41]        
THE COURT:  That would be the 25th?

[42]        
MR. BURGOYNE:  I am leaving on the 25th. I do not be hear on the 25th.

[43]        
THE COURT:  24th, then.

[44]        
MR. BURGOYNE:  24th is a Thursday.

[45]        
THE COURT:  Well, I simply pick that date because it is the end of next
week.

[46]        
MR. BURGOYNE:  Yeah.

[47]        
THE COURT:  Is it not?

[48]        
MR. BURGOYNE:  Yeah. Thursday is the 24th.

[49]        
THE COURT:  So will you be in a position by the 24th ‑‑

[50]        
MR. BURGOYNE:  I will be in a position to ‑‑ yes.

[51]        
THE COURT:  Yes.

[52]        
MR. BURGOYNE:  Yes.

[53]        
THE COURT:  Very well. Then in terms of scheduling anything, should you
decide that you do …

[54]        
MR. BURGOYNE:  Wish to reopen the case, which is what we have been
talking about, with further evidence.

[55]        
THE COURT:  Yes. I would need to know specifically what evidence ‑‑

[56]        
MR. BURGOYNE:  Right.

[57]        
THE COURT:  ‑‑ you could need to ‑‑ you think
you need to address. And I will make a ruling on that. Because ‑‑

[58]        
MR. BURGOYNE:  Right.

[59]        
THE COURT:  ‑‑ I don’t want to ‑‑ I heard a lot
of evidence in this case, and I do not want there to be a second kick at the
cat.

[60]        
MR. BURGOYNE:  Yes.

[61]        
THE COURT:  Unless it is absolutely necessary, arising from this new
evidence.

[62]        
The other thing that counsel should know is that I am probably tied up
until December in cases. So that ‑‑ if such evidence is to be
called, it would have to be perhaps at a 9 o’clock in the morning hearing. I am
very conscious of the length of time that has transpired since the trial, since
the accidents. And yet of course if you make out a case for being able to put
evidence before the court ‑‑ my thought had been the evidence the
court ‑‑ I do not need to hear further evidence from Ms. Bergen
on the issue. I have the letter from the CBSA and I have her response. The
letters speak for itself from my perspective.

[63]        
MR. BURGOYNE:  All right. So I will ‑‑ I will advise the
registry. If I am instructed to reopen the case then I will set down an
application before you for Thursday of next week at 9:00, 9:30 or something and
then we will ‑‑ I will make my submissions to you on that at that
time. I think I am in chambers at 10 o’clock, so we could do
[indiscernible] Thursday ‑‑

[64]        
THE COURT:  Well, next week I am not available.

[65]        
MR. BURGOYNE:  Oh, next week you are not available.

[66]        
THE COURT:  And next week I am not available. All I would like I think
is a note ‑‑

[67]        
MR. BURGOYNE:  Note, right, yes.

[68]        
THE COURT:  ‑‑ from you to scheduling, the yes or no ‑‑

[69]        
MR. BURGOYNE:  Yes, okay.

[70]        
THE COURT:  ‑‑ kind of note.

[71]        
MR. BURGOYNE:  Okay.

[72]        
THE COURT:  Okay.

[73]        
MR. GOOD:  And then the mechanics would be that we try to move as
quickly as we could in terms of both getting the ‑‑

[74]        
MR. BURGOYNE:  Well, I think ‑‑

[75]        
MS. ANJOS:  ‑‑ the evidence and the arguments in the
[indiscernible] ‑‑

[76]        
THE COURT:  Yes.

[77]        
MR. BURGOYNE:  I think we are all on [indiscernible]. Thank you, My
Lord.

[78]        
THE COURT:  Thank you.

“Greyell
J.”