Carfra Lawton LLP | Victoria BC

Plaintiff’s Application To Reopen Case Dismissed

The plaintiff in Thompson v. Choi 2015 BCSC 35 was denied leave to reopen his case, to rebut the testimony of a defence witness, 5 months after closing at trial. This was a claim for personal injury resulting from a motor vehicle accident. The defence witness had testified on an important factual issue and referred to documentary evidence that the plaintiff did not have the opportunity to review or respond to. The testimony was consistent with a “Will Say” statement which had been provided to the plaintiff before trial, but the documents (time cards and a security log from the plaintiff’s employer) had not been produced before trial.

The court confirmed the general rule that rebuttal evidence will be permitted only when necessary to ensure each party has an equal opportunity to hear and respond to the full submissions of the other. However, the plaintiff was not allowed to reopen his case because his application was brought nearly five months after the last day of trial, he did not object when the evidence was raised at trial, and he did not request an adjournment to review the documents. Also, the trial was adjourned for nearly 5 months to accommodate further oral submissions but the plaintiff did not seek production of the records or to reopen his case, in that time. Furthermore, the plaintiff could not have been surprised by the evidence, given the content of the Will Say statement produced to him before trial; and the documents would not have assisted the plaintiff to articulate his evidence more clearly.

Case law update by: Caroline Alexander