Ruling on Motion to Re-open Plaintiff’s Case
[1] The plaintiff has closed its case in this civil jury trial involving the plaintiff’s claims for damages arising from a motor vehicle accident of December 26, 2015. Due to the unavailability of witnesses, the defence is not able to call its first witness until Wednesday December 11, 2019.
[2] As counsel and the court were discussing the questions to be put to the jury, I raised the fact that plaintiff’s counsel had not entered the plaintiff’s income tax returns as evidence. I explained that if a claim for loss of competitive work capacity was to be put to the jury, those documents would possibly be necessary for the jury to have available to the jurors.
[3] In the face of objections from counsel for the defendants, I advised counsel for the plaintiff that a motion would have to be brought to re-open the plaintiff’s case for the purpose of introducing those income tax returns. I was advised that they had been produced to the defendant during the course of these proceedings.
[4] That motion to re-open the plaintiff’s case was brought on December 9, 2019 and argued by counsel.
[5] The affidavit in support simply states that it was through inadvertence of counsel that the plaintiff’s income tax returns were not entered in evidence when he was testifying. I do note that plaintiff’s counsel did try to enter one or more of the returns subsequently when the plaintiff’s wife was testifying, but based on the defendant’s objection, I disallowed the admission of the document(s) through her. I accept the candid acknowledgment of counsel that the oversight was due to inadvertence and not due to an attempt to reframe the plaintiff’s case for tactical advantage. If the latter were the case, or even suspected by me, I would deny the motion.
[6] Counsel for the defendant has submitted that to allow the re-opening of the plaintiff’s case at this stage is prejudicial to the defendant. First, in submissions on the appropriate jury questions, the position and strategy of the defendant was disclosed. I do not think that the submissions made on jury questions on Friday, December 6, 2019 raised any issue or strategy that would prejudice the defendant. This is hardly a complex personal injury case.
[7] The defendant further argues that even if the income tax returns are permitted to be entered, there is still an insufficient evidentiary foundation to put a question of loss of employment capacity to the jury. Hence, she rhetorically asks why the court should waste its time in these circumstances?
Analysis:
[8] Trial fairness is a paramount concern in every court proceeding. Our Rules of Civil Procedure have been amended many times over the years to avoid trial by ambush. In this case, the documents in question have been produced to the defendant prior to trial as part of the production obligation imposed on each party.
[9] I do not think it will take very long to recall the plaintiff to identify the documents so that they can be entered as exhibits. The defendant, if so inclined, has the right to full cross- examination. I do not feel that the defendant will be significantly or irreparably prejudiced by making this order.
[10] The evidence is arguably very material to the plaintiff’s case. Dr. West, an orthopedic doctor called as an expert witness by the plaintiff, has testified that the motor vehicle accident exacerbated the plaintiff’s pre-existing osteoarthritic right shoulder and as a result, his employability has been adversely affected. The plaintiff wished to have his pre-accident income and diminished post accident income, as reflected in his income tax returns, before the jury to allow them to assess the quantum of his loss of earning capacity.
[11] I must say that there is a significant deficiency in the other evidence given to the jury to support such a claim. I am going to exercise my discretion to permit the plaintiff to re-open his case for the limited purpose of identifying and filing his income tax returns for the years 2012 to 2018 inclusive.
[12] In making this order, I have taken into account the direction of the Court of Appeal in Malkov v Stovichek-Malkov, 2018 ONCA 620 at para. 14 where the test applied in Catholic Children’s Aid Society of Toronto v M.R. 2014 ONCJ 762 was approved.
Conclusion:
[13] The motion is granted. The plaintiff shall be granted leave to recall the plaintiff to testify for the sole purpose of identifying his income tax returns or income information for the years 2012-2018 inclusive and for no other purpose. The defendant may permit the documents to simply be filed as exhibits or may require the plaintiff to testify so that he is subject to cross- examination on the documents filed and any other issues related to his claim for future loss of earning capacity or competitive advantage.
[14] The costs of this motion and the costs of any time spent dealing with the plaintiff’s evidence are payable to the defendant in any event of the cause. I can be spoken to about assessing those costs at the conclusion of this trial.