IN THE SUPREME COURT OF BRITISH COLUMBIA
Williams v. Vancouver (City of),
2005 BCSC 1900
Williams, Personal Representative of
Thomas Evon Stevenson, Deceased, Angelo Williams
and Ephriam Williams, Infants, by their Guardian Ad
Litem, Lisa Williams, and the said Lisa Williams
of Vancouver, Clive Milligan
and Darren E. Foster
Before: The Honourable Madam Justice Boyd
Oral Reasons for Ruling – Declaration of Mistrial
October 11, 2005
Pronounced in Chambers
Counsel for Plaintiffs:
Counsel for Defendants:
Place of Trial/Hearing:
 At the conclusion of the fifth day of trial, I declared a mistrial in this action with Reasons to follow on today’s date. These are my Reasons.
 I should note at the outset that my declaration of a mistrial arose from defence counsel’s use of certain undisclosed documents to conduct the cross-examination of the infant plaintiff, Angelo Williams. The documents in issue are the Canada Corrections Documents involving one Steven Evon.
 By way of background, this is an action brought by Lisa Williams and her children, Angelo and Ephraim Williams, for damages under the Family Compensation Act arising from what they allege is the wrongful death of Thomas Stevenson at the hands of two Vancouver City police officers on December 7, 2002.
 The City of Vancouver has been joined by virtue of its statutory liability for the tortious actions of the police. The individual defendants admit they shot Stevenson, but they say they used justifiable force in doing so. In the alternative, in the event liability is found against the police officers, the defendants say that there are no damages which arise from Stevenson’s death, since he was largely in jail throughout the years spanning the alleged common law relationship and he therefore contributed no income nor any household nor any parental services to either the widow or the children during that period.
 Since some 20 days were estimated for the jury trial of this action, the matter was automatically subject to case management under Mr. Justice Davies for a number of months prior to trial. I understand that the issue of documentation was brought up on several occasions, including at the final Case Management Conference on September 24th, over a week before the trial which was scheduled to commence on October 3, 2005. At that time, Justice Davies directed that following the selection of the jury, the balance of the first day of trial ought to be reserved for the hearing of various motions concerning the admissibility of certain documents. He also directed the parties to exchange witness lists before trial.
 The trial commenced on Monday, October 3, 2005. Unfortunately the selection of the jury could not be completed and was put over to the second day of trial. As originally planned, the balance of that first trial day was spent in submissions concerning the admissibility of various documents. At no point did defence counsel advise either plaintiffs’ counsel or the Court that there was any issue involving the admissibility of the Canada Corrections Documents.
 On Tuesday, October 5, 2005, we completed selection of the jury and spent the balance of the morning on a voir dire directed to the admissibility of other evidence. The trial proper commenced with the first witness that afternoon—the 17-year-old infant plaintiff, Angelo Williams. I will not summarize his evidence generally. All that is relevant here is his evidence that with the exception of a period of approximately 10 months, when Stevenson had been incarcerated, he had always been living with the family at their home on Bloor Street in Toronto.
 In cross-examination, defence counsel essentially reviewed the evidence he had provided in chief, and then carefully led the witness to more specifically describe Stevenson’s presence in the home and the presents he gifted to him at each birthday. Eventually counsel challenged the witness and put to him that in fact, contrary to both his evidence in chief and his testimony in cross-examination to that point, Stevenson had been incarcerated for a total of 41 months during the period from December 1997 until March 2002, with the exception of the times he was out on day parole.
 The witness denied the suggestion. Counsel then began to put to the witness very specific dates when she suggested Stevenson had been incarcerated. While no document was ever put to the witness, it was clear that counsel was referring to notes or documents as she did so. Ultimately the infant plaintiff admitted that he was not at all clear as to precisely when Stevenson had been incarcerated, but he insisted that whenever he was not in jail, Stevenson lived together with his mother and brother and himself as a family.
 Later that night, at 11:30 pm, defence counsel faxed approximately 60 pages of documents to plaintiff’s counsel. The documents include a summary of the history of the periods of incarceration of one Steven Evon, and all of the original support documents which back up that summary.
 The plaintiff’s counsel first reviewed those documents the following morning—October 6, 2005—and then on attending at trial, alerted the Court that he would be making an application for a mistrial on the grounds the documents had not previously been disclosed. The matter was adjourned to the following day.
 The thrust of the plaintiffs’ application is that by not disclosing the documents earlier, defence counsel was guilty of procedural misconduct and that the plaintiffs were entitled to a number of remedies including: (i) the recovery of costs thrown away (ie the two days of lost court time) payable in any event of the cause and (ii) a ruling that the 60 pages of Canada Corrections documents were inadmissible at trial. In the alternative, and as the ultimate remedy the plaintiffs seek the declaration of a mistrial, with the defence to pay all of the costs thrown away to date, and a resetting of the matter for trial.
 In support of his application Mr. Ward noted that commencing approximately two weeks before the commencement of the trial, both parties were focused intensely on the issue of document production. An application concerning the production of other defence documents was heard before Master Scarth on September 14th, with written submissions to follow on September 29th and 30th. Between September 12th and 23rd, an 8th, 9th and 10th Supplementary List of Documents was filed by the defence. Despite this obvious focus, defence counsel remained entirely silent concerning her possession and control of the documents in issue which came into her possession during September.
 The plaintiffs were unaware that sometime following the examination for discovery of the plaintiff Lisa Williams in June 2005, the City’s counsel, Ms. Liang, had begun an intense investigation of the dates when Stevenson had been incarcerated during the period 1998 to 2002. At her discovery, Ms. Williams had said that during the course of her relationship with Stevenson he had been incarcerated for approximately 12 months. Ms. Liang had compared that evidence with the Canada Corrections documents concerning Stevenson which had been produced to that point, and believed that this could not be the case.
 In fact, to that point, the only Canada Corrections documents which had been produced were those which had been made available to the defence through the Vancouver City Police Department, as a result of its investigation into Stevenson’s death. The documents gathered in the course of the investigation included the CPIC search and the Certificate of Conviction concerning Stevenson. These latter documents indicated that Stevenson had been convicted of 5 counts of robbery on December 4, 1997 for a period of 3 years and 6 months on each count, to be served concurrently. His next conviction (under the name Steven Evon) was entered April 22, 2001 for 3 counts of possession of stolen property and two counts of fraud, for which he was sentenced to a suspended sentence and 3 years probation. The final conviction was August 2, 2001 for escape from lawful custody, for which he was sentenced to 45 days consecutive to the sentence he had been serving.
 Relying on those documents it is of course difficult to interpret precisely when Stevenson was incarcerated and when he was not. One would expect, based on the Certificate of Conviction, that he would have been released from prison long before the expiry of the original 3 year and 6 month sentence, yet the August 2001 conviction notes he escaped from lawful custody, although the date of that escape is not recorded. That conviction was apparently related to the name Steven Evon rather than Thomas or Tom Stevenson.
 Thus defence counsel began her investigation in earnest following the examination for discovery. Mr. Ward said he did not pursue the matter any further. Even assuming that the individual identified as Steven Evon in the documents was indeed the alias used from time to time by the deceased Stevenson, he noted that in the Canada Corrections documents produced, Steven Evon is sometimes described as being some 178 cm tall whereas in other documents he is described as being 170 cm tall. He questioned the reliability of these documents. In any case, he noted that all aliases are referred to on the face of the Certificate of Correction produced earlier and he therefore saw fit to pursue the matter no further.
 At some point in September 2005, after making some 80 telephone calls to different agencies within Canada Corrections, Ms. Liang determined that a Ms. McLean, the British Columbia Canada Corrections Sentencing Manager, had access to the complete documents relating to the history of incarceration of one Steven Evon, the person the defence alleges was the deceased Thomas Stevenson. A number of discussions ensued resulting in Ms. McLean preparing, at Ms. Liang’s request, a Summary of Mr. Evon’s Canada Corrections history. (I should note here that Ms. Liang’s affidavit is entirely silent about this matter. This information was elicited in answer to questions which I asked of her during submissions). In any case, that document—what I will call the Evon History summary—was forwarded to Ms. Liang sometime before September 19, 2005. Ms. Laing’s affidavit is silent regarding the date that critical document was received.
 Once she had this document in hand, Ms. Liang apparently decided on September 19th that she needed the backup documents supporting the summary. I deduce that those documents could not be provided to her short of some Court process requiring production. Thus, on September 19th, Ms. Liang issued a Subpoena Decus Tecum to Ms. McLean, requiring that she produce all of the support documents at trial. The subpoena was also not produced at this application. Nor is it referred to in Ms. Liang’s affidavit.
 Ms. McLean apparently did not wait to attend trial with the documents as the Subpoena requires but instead immediately forwarded the collection of documents to Ms. Liang. Some were received on September 26th and the balance, following further discussions between Ms. Liang and Ms. McLean, were received on September 28, 2005.
 On September 23, 2005, Ms. Liang filed the defendants’ 10th Supplementary List of Documents. Unbeknownst to plaintiffs’ counsel, the Evon History summary prepared by Ms. McLean was apparently included in the list of privileged documents under Part III of the list. While Part III of the list refers to “documents prepared at counsel’s request for the dominant purpose of litigation” and “documents…prepared...on behalf of the defendants”—Ms. Liang was unable to say which description referenced the Evon History summary prepared at her request. Clearly, there is nothing in either description to provide plaintiffs’ counsel with any proper notice of the nature of the document received.
 At no point following the receipt of the Evon History summary or the backup documents which followed did Ms. Liang inform plaintiff’s counsel or the trial management judge of any issue concerning the admissibility of these documents.
 The plaintiffs submit that they are entitled to the relief sought since the defence failed to properly disclose these documents, as they were obliged to do, under Rule 26(2) and Rule 26(2.1). Accepting that the documents were properly characterized as privileged documents, contained in the defence solicitor’s brief, Mr. Ward nevertheless submits that counsel had an obligation to list the privileged documents (Rule 26(2)) and to describe the nature of the document in such as way as to enable the plaintiffs to assess the validity of the claim of privilege (Rule 26(2.1).
 As soon as the documents came into counsel’s possession or control, he submits counsel was obliged by Rule 26(13) to “deliver forthwith” a supplementary list of documents specifying the inaccuracy (of the previous list) or the new document received. He notes that Rule 26(14) provides that unless the Court otherwise orders, where a party fails to comply with the rule, “the party may not put the document in evidence in the proceeding or use it for the purpose of examination or cross-examination.
 In withholding the documents as she did, in not immediately preparing an 11th Supplementary List of Documents (at least properly describing and listing the documents as privileged documents) and then in using the information contained in those documents to conduct her cross-examination of the infant plaintiff, Angelo Williams, he submits Ms. Liang is in breach of Rule 26(2.1) and Rule 26(13). As a result, Mr. Ward submits the plaintiffs have suffered irreparable damage, leaving no option for the Court but to declare a mistrial. It should be noted that his clients will not consent to the continuation of the trial without a jury (as prescribed by Rule 41(7)) and accordingly this alternative relief is not available.
 While the defence acknowledges counsel’s failure to prepare the necessary Supplementary List of Documents immediately upon receipt of the majority of the documents in issue, Mr. Quayle submits that Ms. Liang’s delay was nothing more than a “minor delay”. He submits that in the context of busy pretrial preparation in the days immediately before trial, the one week delay is not significant and the eventual production amounts to production “forthwith” within the meaning of Rule 26(13).
 In any event, Mr. Quayle insists Mr. Ward was or ought to have been aware of the information contained in the documents and that no real prejudice flowed from the late disclosure. He vehemently denies that Ms. Liang wrongfully concealed the documents and submits that such an allegation ought to give rise to the Court dismissing the plaintiffs’ application and awarding personal costs against Mr. Ward, as punishment for bad faith on his part.
 In my view, the defence submission here is entirely without merit. In the circumstances of this case there is no acceptable excuse for defence counsel’s delay in producing these documents. I should note that two different and contradicting explanations have been offered by the defence.
 The initial explanation offered by Ms. Liang and the same one which emerges in her affidavit material was that she was so busy addressing the many issues which arose in the pre-trial period she simply had no opportunity to review the Canada Corrections documents until the night of October 5, 2005, following her cross-examination of the infant plaintiff. At that point, she says she realized the significance of the documents and then decided to waive privilege and forward them to Mr. Ward.
 Her second explanation, which she provided orally during submissions, was that on receipt of the documents, she determined to retain them as privileged documents in her solicitor’s brief, and that it was not until following her conclusion of the cross-examination of the infant plaintiff that she decided she would indeed be calling Ms. McLean as a witness. She said her plan had been to put the details of the Canada Corrections documents to the witness on cross-examination. In the event he admitted the periods of incarceration stated there, she said it would then be unnecessary to call the Canada Corrections witness in any event. However since the infant plaintiff did not make the necessary admissions, she realized it would be necessary to call the Canada Corrections witness to prove the dates of incarceration. Her waiver of any privilege attached to the documents thus followed.
 In my view, this later explanation reveals the illogic of the defence position. Ms. Liang, in my view, was well aware of the importance of the crucial Canada Corrections Evon History summary which she had received. This was prior to September 19th, although the actual date of receipt has not been disclosed. The other Canada Corrections documents were simply the backup documents which supported the facts set out on the face of the summary Ms. McLean had prepared. While Ms. Liang perhaps had no opportunity to review the backup documents until after the cross-examination of the infant plaintiff was completed, she always knew that those documents would simply prove the dates set out in Ms. McLean’s earlier summary.
 I entirely reject Ms. Liang’s explanation that she only realized the importance of the documents following a review of those documents after the cross-examination of Mr. Angelo Williams. It is obvious that the importance of the summary had been fully realized on its receipt prior to September 19th and formed the basis of the cross-examination of the infant plaintiff.
 Ms. Liang complained that it was not until the second day of trial that she had any notice Angelo Williams would be called as a witness at trial. I gather this complaint is meant to suggest that if she had had some earlier notice, she might have addressed the disclosure issue somewhat earlier.
 In my view nothing turns on the late notice of Mr. Williams being a witness. Had his mother instead appeared as the first witness at trial, as would likely have been the case, I have no doubt she would have been subjected to the identical cross-examination, relying on Ms. McLean’s summary. The only surprise for the defence was that it was the infant plaintiff rather than the adult plaintiff who was caught by surprise.
 I am satisfied Ms. Liang realized from the outset, on receipt of the Ms. McLean’s summary, that she had access to the key evidence required to challenge, if not destroy, the plaintiffs’ position on damages. Assuming the defence could prove that the deceased Stevenson and Steven Evon were one and the same person, the documents effectively destroyed the evidentiary foundation of any claim that Stevenson had been a breadwinner or a person in loco parentis to the infant children during the majority of the relevant four year period, prior to his death in December 2002. The documents are not corollary documents. Rather the documents are highly relevant documents which go to the heart of the defence position on damages.
 Regarding the issue of whether plaintiffs’ counsel himself ought to have conducted his own investigation and found the documents himself, I have little to say. It is clear to me that the documents in question are not ones which would be readily available to anyone, including legal counsel. It is noteworthy that all of the original Canada Corrections documents were only available by virtue of the Vancouver Police Department investigation. Those which followed were only identified following Ms. Liang’s own intensive investigation. I reject the notion that her discussions with Canada Corrections officials could be duplicated by any citizen or lawyer who did not represent a police agency. I very much doubt that Ms. McLean would have prepared for Mr. Ward the Evon Summary she prepared for Ms. Liang or that the plaintiffs would have had similar access to such information—even to form the materials required for a Rule 26 application.
 In my view, defence counsel has breached several rules of practice. First on receipt Ms. McLean’s summary, defence counsel had an obligation to immediately—and I stress the words immediately—amend the List of Documents so as to include a reference to the Evon history summary, in such a fashion that plaintiffs counsel would be able to identify the nature of the document. This should have occurred well before the last Case management conference and the issue of the admissibility of those documents ought to have been raised there and then. Had that occurred, then the issue would have been brought immediately to the attention of the trial judge along with the other admissibility issues raised. Time ought to have been scheduled for the hearing of an application concerning counsel’s intention to maintain her position regarding the privileged status of those documents. Further, Ms. McLean’s name ought to have been revealed at the outset of trial and included in the defence list of potential witnesses.
 Instead, the entire existence of the Canada Corrections documents—the heart of the defence case on damages—remained a matter of subterfuge throughout and was only revealed, at least indirectly, as the 17-year-old witness was caught on cross-examination.
 The defence has relied on a series of cases, including the decision of Mr. Justice Fraser in Blake v. Gill (1996) B.C.J. No. 2041 (S.C.). There the Court allowed cross-examination of a witness using a document which had not been disclosed to that point. The document was an earlier statement which the plaintiff had provided to the police. Exercising his discretion under Rule 26(14), Fraser J. held that it sometimes may be reasonable for counsel to withhold disclosure of a document in order to make better use of it for cross-examination purposes.
 I note that this case was decided in 1996, before the amendment of Rule 26, to include the subrule (2.2). Unquestionably since 1996 the trend has been towards more and more disclosure, as Fraser J. himself noted was already the growing trend in Blake.
 Is it noteworthy that this issue arose again in Elizabeth Ball v. Gap (Canada) Inc. 2001 BCSC 824. There defence counsel sought to cross-examine the plaintiff using a document which had been created by her own counsel in an earlier and different action involving a motor vehicle accident. Ross J. held that the party seeking to tender the document had the burden of providing a reasonable explanation for the failure to disclose. She noted Henderson J.’s comments in Carol v. Gabriel (1997) 14 C.P.C. (4th) 376, where he said:
…Even in cases where no prejudice will ensue from the admission in evidence of the document, it will be excluded unless there is a reasonable justification for the earlier failure to disclose it. To hold otherwise would be to dilute the disclosure obligation and tempt counsel to refrain from disclosing in situations where they do not expect a prejudice to result.
 In Ball, the explanation offered was that the document was not the defendant’s document and was never in its possession or control but rather was a document which fell within the “solicitor’s brief” privilege. This of course is the identical position taken by the defence here.
 Ross J. held that such a position was of no assistance to the defence. She noted:
I agree that the document arguably falls within the scope of the “solicitor’s brief” privilege. That is, however, no answer to the disclosure requirements of Rule 26. …the mere fact that the document is a privileged document sought to be used in cross-examination does not provide reasonable justification for the failure to disclose.
She distinguished the document before the court from that considered in the Blake decision. She notes at ¶ 11:
In this case… none of the concerns with respect to the interests of justice and truth in testimony identified by Fraser J. in Blake …are present. In the case at bar, the document in question was not authored by the plaintiff. It was not a statement of the plaintiff, nor did it contain any evidence of the plaintiff. Moreover, I have reviewed the letter and find nothing in it which is inconsistent in any material way with evidence already given by the plaintiff in chief and in the course of her cross-examination. I see nothing in the letter which would reflect upon Ms. Ball’s credibility in any material way.
 Accordingly, she ruled that the letter was inadmissible in evidence.
 In the case at bar, the documents similarly do not raise any of the interests which were identified by Fraser J. in Blake. The document was not authored by any of the plaintiffs. It did not contain any evidence of the plaintiffs. Further, given that the cross-examination was aimed specifically at the dates when Thomas Stevenson had been incarcerated, rather than when Steven Evon was incarcerated, and no evidence was elicited from the witness concerning Stevenson’s aliases, if any, there was nothing on the face of the privileged Canada Corrections documents (including the Evon History summary) which were inconsistent in any material way with the evidence already given by the infant plaintiff in chief or in cross-examination. Until such time as there was evidence before the Court concerning proof of the documents, they did not reflect upon Mr. Angelo Williams’ credibility.
 In determining whether there ought to be a mistrial, I have considered whether the misconduct here may be remedied by simply declaring the impugned documents to be inadmissible and allowing the trial to continue. In my view, this will not redress the prejudice which the plaintiffs have suffered.
 The City’s counsel has submitted that no real prejudice has been suffered by the plaintiffs. If the Court determines the Canada Corrections documents are inadmissible in evidence (either because of the breach of Rule 26(13) or because of the defence’s eventual inability to prove their relevance) Mr. Quayle submits it would be a simple matter for the trial judge to simply remind the jury that the defence has not proven the dates of incarceration put to Angelo Williams. Thus he says whatever prejudice might have been suffered can effectively be erased by a proper jury charge.
 His position is undoubtedly a reflection of the fact he was not in the Courtroom during the cross-examination in issue. Having been present in the courtroom and having witnessed Mr. Angelo Williams’ cross-examination, I can only say that my own impression was that the cross-examination substantially undermined the strength of his evidence and his credibility as a witness. Initially he insisted he was correct in his estimate of the length of Stevenson’s incarceration. As the cross-examination continued he became visibly flummoxed and then after several challenges he finally capitulated and admitted he had no idea of precisely when Stevenson had been incarcerated.
 I should note that all of the challenges were phrased on the basis that Mr. Thomas Stevenson had been incarcerated on certain dates. In fact, I understand that the documents relied on all relate to the incarceration history of one Steven Evon. It remains to be established that that individual is the deceased.
 Even if the documents are ruled to be inadmissible, I have no hesitation in saying that there is no jury charge which could erase the effect of this cross-examination. The cross-examination left the jury with the impression defence counsel had access to documents which clearly proved the infant plaintiff had lied and had misled the jury. Whatever the Court’s instruction, I remain convinced that this impression cannot not be erased. The cross-examination at least achieved a near retraction of any clear evidence from the infant plaintiff of whatever period he insisted he had enjoyed with Mr. Stevenson, as a near father and provider in the Williams household. No jury charge could remedy that resigned admission.
 As Sopinka J. noted in The Law of Evidence in Canada, ¶ 16.100:
Juries, in particular, could be influenced by suggestions made in cross-examination, but not subsequently proved. Most juries would assume that a responsible counsel would not make such suggestions unless there was some justification for the in his or her brief.
 Since there was no objection made here, I did not direct the jury to disabuse their minds of what was in effect an unsubstantiated suggestion. The infant plaintiff has now left the witness stand and the damage which I find has been done cannot be redressed. In my view, a warning at the conclusion of trial will come far too late in the day to be helpful.
 There is the further complication that when his mother testifies, her evidence will undoubtedly contrast with his, since she will be prepared to testify based on the documents now disclosed. The jury will not understand the reasons for what will undoubtedly be the differences in their evidence.
 The issue, in my view, is whether defence counsel’s improper disclosure had had an effect upon the jury’s consideration of the evidence in this case. I have no doubt that that misconduct has indeed had a very damaging effect on the “way the jury listened and understood the evidence”. Adopting this test, which is set out in de Araujo v. Kenneth Read 2004 BCCA 267, I find that I have no alternative but to declare a mistrial.
 The plaintiffs’ are entitled to a declaration of a mistrial as well as an order for recovery of all the costs thrown away as a result of defence counsel’s misconduct. The plaintiffs have lost all of the costs thrown away preparing for trial (including all of counsel’s trial preparation and the applications for production of documents and the case management conference immediately before trial) as well as the plaintiffs’ own costs of traveling to and from and living in the city while the trial was underway. All of these costs must be payable by the defence forthwith. The matter will then be reset for trial.
 Finally, I direct that this action be referred back to Davies J. for his continued case management.
“M.E. Boyd, J.”
The Honourable Madam Justice M.E. Boyd