22 Aug Reopening Trial to Adduce Important and Fresh Evidence

After a trial has finished, it is not unusual for it to take several months for the Judge to write his or her decision.  What happens if new evidence comes to light before the decision is delivered?  Can the trial be re-opened to introduce that new evidence?

This issue was before the court in the case of Bergen v. Gaetz, 2015 BCSC 1871. The Plaintiff had been in two accidents in which she had been rear-ended.  Both accidents were dealt with at a trial that took place in March and April, 2015.  At her trial, the Plaintiff made a claim for loss of future income.

The Plaintiff was employed as a Canada Border Services Agent.  She stopped work as a result of low back pain which she alleged was caused by the accidents. She was in receipt of disability benefits and, at the time of trial, the carrier of the benefits was in the process of reviewing whether or not she should continue to receive such benefits.

At trial, both parties called evidence concerning the Plaintiff’s work capacity.  An occupational therapist was called on behalf of the Plaintiff.  He did a functional capacity evaluation and concluded that the Plaintiff 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.  He recommended she undertake vocational assessment counselling.

ICBC called an expert who reviewed the occupational therapist’s assessment and Sunlife’s disability records. In his opinion, the Plaintiff had potential for retraining and suggested she obtain suitable alternate employment within the CBSA.  He thought it was possible she could be accommodated in a modified light‑duty position with the CBSA or transferred to a different job within her physical abilities, and thus maintain her seniority, pension contributions, health care and extended benefits.

Following the trial, but before the Judge’s decision was delivered, the Plaintiff’s employer sent her a letter asking her to: (a) retire on medical grounds, (b) return to duty or (c) resign.  The Plaintiff brought an application to reopen the trial to introduce this fresh evidence.  ICBC opposed her application.

The Judge had to determine if a miscarriage of justice would occur if the trial was not reopened, and if the new evidence would change the result.  In his view, the letter was clearly relevant to the issue of lost earnings and he felt it may very well affect the amount of damages he awarded under this heading.  The Judge exercised his discretion and allowed the evidence to be admitted.  He then asked counsel for both parties to address the interpretation and effect of the letter in argument.

So it is clear that, prior to the entry of the formal order, the trial Judge has a wide discretion to reopen the trial to hear new evidence.  However, such discretion is exercised sparingly and with the greatest care so as to prevent fraud and abuse of the court’s process.

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