McIlvenna v. Viebig,


2011 BCSC 57

Date: 20110119

Docket: M032644

Registry: Vancouver


Connor Allen McIlvenna



Gerd Julius Viebig


Before: The Honourable Mr. Justice Sigurdson

Reasons for Judgment - Application to Re-Open Trial

Counsel for the Plaintiff:

Joe Battista, Q.C.
Kevin Gourlay

Counsel for the Defendant:

Mary-Helen Wright
Kerry N. Grieve

Place and Date of Hearing:

Vancouver, B.C.

January 12, 2011

Place and Date of Judgment:

Vancouver, B.C.

January 19, 2011


[1]             On January 12, 2011, I heard the plaintiff’s application to re-open a trial.  The five day liability trial started on August 30, 2010, and completed on September 3, 2010.  Judgment has been reserved. 

[2]             The trial is of the issue of liability arising from a 1995 accident when the plaintiff, then under 7 years of age, was injured when the bicycle he was riding collided with the motor vehicle driven by the defendant, Gerd Viebig. 

[3]             The collision occurred at an unmarked, uncontrolled T-intersection, where a road, now called Library Road, enters the west side of the Tsawwassen Town Centre Mall and forms a t-intersection with what was referred to as the north-south road along the mall. 

[4]             The nature of the foliage at or near the intersection, the sight lines available to the driver and the young cyclist, and location of the collision were among the issues at trial. 

[5]             The plaintiff’s counsel sought on this application to introduce evidence that apparently related to the defendant’s eyesight, or perhaps fitness to drive, at the time of the accident.

[6]             The basis for the application arises from certain Medical Service Plan (“MSP”) records that were recently produced to the plaintiff.  The MSP printout for the defendant from the period January 1, 2003, to August 18, 2010, was produced prior to the commencement of trial on August 24, 2010.  On October 15, 2010, counsel for the defendant produced a copy of the defendant’s Medical Services Plan printout from January 1, 1994, to December 31, 2002, these records having been received by the defendant’s counsel after the trial on September 28, 2010.

[7]             In particular, the plaintiff sought to re-open the trial in order to submit Medical Service Plan records of the defendant for the period January 1, 1994, to December 31, 2002; the complete medical record of Dr. Arthur Shier, a general practitioner, from January 1, 1994, to the present date; and the ophthalmology records of various specialists from January 1, 1994, to the present date that are described in the MSP printout. 

[8]             The plaintiff says that the MSP printout of medical services rendered to the defendant demonstrates that, in the year before the September 14, 1995, accident, the defendant saw Dr. Janette Lindley for an ophthalmology consultation on September 27, 1994.  The apparent consultation with Dr. Lindley apparently relates, at least according to the standardize coding, to disorders of the optic nerve and visual pathways.  Mr. Viebig saw Dr. William Ross and Dr. Duncan Anderson for what is described in the coding reference in the printout as “retinal disorders or eye tests”.  On October 24, 1994, the MSP printout appears to indicate that Mr. Viebig saw a radiologist for a head scan.  On November 15, 1994, there were further entries relating to ophthalmology and references to tonometry. 

[9]             After the accident, the next entry of a medical attendance possibly relating to Mr. Viebig’s vision appears to be an ophthalmology consultation with Drs. Anderson and Lindley on October 6, 1997. 

[10]         The parties, at least at this stage, do not take issue with the law with respect to re-opening the trial, and accept that it is as set out by Ehrcke J. in Zhu v. Li, 2007 BCSC 1467. 

[11]         The plaintiff argues that Mr. Viebig was inaccurate and misleading in response to questions on his examination for discovery in 2004.  First, in response to a question about his health generally, he said that he was “like a grizzly bear, that’s how healthy [he] was”.  Second, in a follow up question about whether he had any difficulty with his hearing or sight or coordination he only responded that he had never seen a doctor because of his ears or coordination problems, and the only thing he had was cancer (of the spine).  He did not mention eye problems, although the plaintiff’s counsel argues that the question required a response about his eyesight.  This may be relevant to the question of due diligence if the application to introduce new evidence proceeds. 

[12]         Ms. Wright, for the defendant, opposes the re-opening of the trial on the basis that the material filed on application does not satisfy the test to re-open the trial.  She submits that the plaintiff has not established that there is evidence that would probably have an important influence on the result, or that a miscarriage of justice would probably occur if the trial is not re-opened and that the plaintiff is only on a fishing expedition.  She points out that the plaintiff’s counsel was aware that the defendant wore glasses and there is no basis to suggest that his discovery evidence was misleading.  She argues that the plaintiff’s counsel has failed to demonstrate the required due diligence to secure this evidence in advance of trial. 

[13]         The defendant says that, in any event, this application for these additional medical reports is res judicata because production of the general health records was refused at the time of the pre-trial application for the MSP printout.  In short, she argues that the plaintiff has not demonstrated this to be one of the required “exceptional circumstances”.  She points out that the trial is now many years after the event and that there is prejudice to the defendant if the plaintiff is intending to advance a new theory of liability, given the passage of time.  The records of the general practitioner and specialists, once produced, if they still exist, themselves will have no probative value, as they are not admissible for any opinions contained therein.  Ms. Wright argues that the interests in finality in such circumstances require the application to be dismissed.

[14]         Mr. Battista in reply suggested an alternative approach to his motion, which I think is the just manner in which to deal with the application.  I have decided to adjourn the application of the plaintiff to re-open its case pending production of the records sought if they are available.  I think that it is relevant to the question of whether to adjourn the application pending such production that the plaintiff sought production of the MSP records prior to trial but they were unable to be produced until after the trial was heard.  Accordingly, I direct that the records of the doctors that I have described be produced to counsel for the defendant, Ms. Wright.  I direct that they produce the records for what appears to be the relevant period, 1994 to 1997, if they are available.  Once produced, Ms Wright will review them for relevancy and, if relevant, produce them to counsel for the plaintiff.  The plaintiff will pay forthwith the reasonable costs incurred in the production of these records by the doctors.  Given Mr. Viebig’s apparent mental condition at the present time, I make the order requiring production by the doctors without an authorization signed by him.  As this order for is made without prior service on the doctors involved, they will have liberty to apply on two days’ notice to the parties’ counsel to set aside the order.

[15]         For clarity, the doctors whose records are to be produced that relate to the defendant are for the doctors that I have referred to above that I listed from the MSP printout as well as those of Dr. Shier, the general practitioner for the defendant during that period of time. 

[16]         Once the documents are produced to the defendant’s counsel and then to the plaintiff’s counsel, counsel for the plaintiff will forthwith advise counsel for the defendant if he intends to set down the adjourned application to re-open the case.  If not, I will then complete and issue my reasons for judgment after trial.  Because of the age of this matter and to ensure there is no further unnecessary delay, I ask the parties to fix a case management conference with me within the next six to eight weeks to report on the status of this matter.

“J.S. Sigurdson J.”

The Honourable Mr. Justice J.S. Sigurdson