CITATION: Bishop-Gittens v. Lim, 2015 ONSC 3971
NEWMARKET COURT FILE NO.: CV-11-107056-00 DATE: 20150619
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Marlene Bishop-Gittens Plaintiff
– and –
Jimmy Kyin Hlaing Lim Defendant
Erin M. Neal, for the Plaintiff
Talar Beylerian, for the Defendant
HEARD: June 3 and 4, 2015
REASONS FOR DECISION
mcKELVEY J.:
Introduction
[1] What is an adverse inference and in what circumstances may defence counsel suggest to the jury that they draw an adverse inference are two issues which arose before me following the closing submissions by defence counsel in this action.
[2] The issues arise out of the trial of a personal injury action. I delivered an oral decision at the conclusion of argument based on an objection by plaintiff’s counsel and advised that written reasons would follow. These are those reasons.
[3] The plaintiff asserts in this action that she suffered serious injuries as a result of a motor vehicle accident which occurred on November 18, 2009. Following this accident, she was treated by a family physician, Dr. Ansari. She also subsequently obtained employment as a general manager at a GAP store. During the course of the trial, the plaintiff filed the medical records of Dr. Ansari as an exhibit. She also called a treating chiropractor, Dr. Antoniazzi, to give evidence with respect to the treatment he provided, as well as a medical expert, Dr. Chen, who is a physiatrist. He testified about the injuries sustained by the plaintiff as a result of the accident. The plaintiff called some work colleagues during the course of the trial, but did not call the district manager, to whom she reported. The employment records from The GAP were produced by the plaintiff during the course of the lawsuit, but were not introduced as an exhibit at trial.
[4] During closing argument, defence counsel made the following two submissions to the jury:
(a) Defence counsel told the jury, “ask yourself why you did not hear from the doctor [Dr. Ansari] who treated the plaintiff for two years after the accident?”
(b) Defence counsel told the jury, “we haven’t heard from her [the plaintiff’s] present managers concerning her performance and I ask you to consider why we have not heard from them?”
[5] Plaintiff’s counsel objected to the above noted comments of defence counsel. In addition, plaintiff’s counsel brought a motion to strike the jury on the grounds of prejudice. I dismissed the plaintiff’s motion to strike the jury notice for oral reasons given during the trial. I found, however, that the comments by defence counsel, as noted above, were inappropriate and required a correcting instruction to the jury.
The Parties’ Positions
[6] The plaintiff objected to the defence submissions on the basis that there was no foundation for the jury to draw an adverse inference. It is acknowledged that no prior notice of the defence position was given to plaintiff’s counsel, who argued that the jury would be unfairly influenced by the remarks of defence counsel.
[7] The defence took issue with the assertion that they were asking the jury to draw an adverse inference from the failure by the plaintiff to call Dr. Ansari or the plaintiff’s supervisors at work. Her position was that asking the jury to consider “why” these witnesses had not been called, was permissible comment and did not constitute asking the jury to draw an adverse inference from the failure to call these witnesses.
[8] Defence counsel further argued that asking the jury to draw an adverse inference in the circumstances was appropriate.
Did the comments of defence counsel constitute an invitation to the jury to draw an adverse inference?
[9] In support of the position that her comments to the jury were not an invitation to draw an adverse inference, defence counsel referred to the Supreme Court of Canada decision in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751. In that case, defence counsel wanted to bring to the jury’s attention the fact that the crown had failed to call a witness who was present at the scene of the incident. The court appears to accept that the comments proposed by the defence did not go so far as to suggest an adverse inference should be drawn from the failure to call the witness. There are two important distinguishing features in the Jolivet decision, however. First, this was a criminal trial. In addition, a significant factor is that Crown counsel had twice announced to the jury that the witness in question would be called. At the conclusion of the case, defence counsel told the trial judge that what he wanted to tell the jury is that, “we would have been perhaps more enlightened if the Crown had called Mr. Bourgade who, according to Mr. Riendeau, was present when St-Pierre returned to the scene. Mr. St-Pierre could have been called. Mr. St-Pierre who was at the scene of the incident, according to what Mr. Riendeau said. Why did the Crown not call these witnesses?”
[10] The court, in Jolivet, referred to a basic principle of advocacy that counsel should generally avoid leading a jury to anticipate more than he or she can deliver. Jurors are likely to remember unfulfilled promises and draw their own conclusions whether or not the shortfall is brought to their attention. In light of the importance of Mr. Bourgade’s expected “corroboration” and the emphasis put on it by the Crown in its opening statement, it was open to the defence to comment on the “missing witness” as well as any other aspect of the Crown’s case, which might lead to a reasonable doubt. The court states,
The defence, it will be recalled, merely wanted to point out to the jury “that we would have been perhaps more enlightened if the Crown had called Mr. Bourgade who, according to Mr. Riendeau, was present when St-Pierre returned to the scene.” The right of the defence to make such a comment was not dependant on showing the Crown had acted on an “oblique motive” in failing to call the expected witness. In its opening, the Crown apparently considered it necessary to call Bourgade to make its case, and had then failed to call Bourgade, arguably acknowledging by its reversal of plans that the case presented against the respondent was not as broadly based as originally anticipated. This was relevant information for the jury to consider. The Crown, not the defence, told the jury about the existence of Bourgade and that he would be part of the Crown’s case. The defence was entitled to suggest to the jury that the failure to call Bourgade left an unspecified hole in the Crown’s proof.
[11] It is apparent that the facts in our case are quite different than those in the Jolivet decision. The plaintiff never indicated to the jury any intention to call either Dr. Ansari or the plaintiff’s manager at The GAP. Defence counsel was not, in my view, pointing to an unspecified hole in the failure of the plaintiff to call evidence which they earlier said would be submitted to the jury. Instead, defence counsel was asking the jury to focus its attention directly on the fact that they had not heard from either Dr. Ansari or the plaintiff’s manager at The GAP. By asking the jury to consider why they had not heard from these witnesses, the obvious inference defence counsel was asking the jury to draw is that these witnesses might not have been helpful to the plaintiff if they had been called.
[12] I therefore have no hesitation concluding that the comments of defence counsel in her closing was an attempt to have the jury draw an unfavourable inference from the fact that neither Dr. Ansari nor the plaintiff’s supervisor were called by the plaintiff as witnesses at trial.
Do the circumstances in this case justify the suggestion that an adverse inference should be taken from the failure of the plaintiff to call either Dr. Ansari or the plaintiff’s manager at The GAP?
[13] I have concluded that the circumstances in this case are not appropriate for an adverse inference to be drawn against the plaintiff. Further, if defence counsel wished to make such an argument before the jury, I have concluded that notice should have been provided as a matter of fairness to the plaintiff by defence no later than the commencement of trial when it was known that these witnesses were not on the list of witnesses expected to be called by the plaintiff.
[14] In commenting on the doctrine of adverse inference, the Court of Appeal in its decision in Parris v. Laidley, 2012 ONCA 755, commented:
Drawing adverse inferences from failure to produce evidence is discretionary. The inference should not be drawn unless it is warranted in all the circumstances. What is required is a case specific inquiry into the circumstances including, but not only, whether there was a legitimate explanation for calling the witness, whether the witness was within the exclusive control of the party against whom the adverse inference is sought to be drawn, or equally available to both parties and whether the witness has key evidence to provide or is the best person to provide the evidence in issue.
[15] In The Law of Evidence in Canada, 4th ed. by Lederman, Bryant and Fuerst, the test for an adverse inference is described as follows:
In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case or at least would not support it.
[16] In the present case, there is no evidence that the witnesses who were not called by the plaintiff can be assumed to be willing to assist the plaintiff. I would consider both a treating physician and an employee’s supervisor to be independent. Thus, the general criteria for and adverse inference would be applicable. The criteria before such an adverse inference can be drawn based on the authorities would appear to be as follows:
(a) The witness must have key evidence to provide;
(b) There must be no adequate explanation for the failure of the party to call the witness; and,
(c) The witness must be within the exclusive control of the party against whom the adverse inference is sought to be drawn.
[17] In the present case, the main issue focuses on whether either Dr. Ansari or the plaintiff’s manager were within the exclusive control of the plaintiff.
[18] The defence position is that both individuals were within the exclusive control of the plaintiff. The defence relies on two Alberta decisions which appear to conclude that a treating physician is within the exclusive control of the plaintiff. In the case of Alberta (Child, Youth and Family Enhancement Act, Director) v. M.K., 2013 ABPC 53, the court commented that medical professionals were in the exclusive control of the respondent as they were her personal psychologists, physicians, and psychiatrists. The court drew an adverse inference for the failure of M.K. to provide relevant medical information. However, this case dealt with a situation where there was a specific order directing the respondent to provide medical reports and information. It appears that the respondent was in breach of the order and that this was a significant factor in the court’s decision. This is reflected at paragraph 25 where the court states,
Considering all the foregoing factors and circumstances, I am drawing an adverse inference against M.K. for failing to provide medical reports as directed by Judge Ho, and for failing to call any medical, psychological or psychiatric witnesses on the material issues of her emotional, mental and physical well-being.
[19] The defence also refers to the Alberta decision in Sidorsky v. Lowry, 2009 ABQB 68. In that decision, the court makes reference to a 1970 decision of a Supreme Court of Canada in Levesque v. Comeau, 1970 4 (SCC) where the court was considering a situation in which the plaintiff was examined by several physicians as a result of deafness that arose two months after a rear end collision. The plaintiff called only one of the physicians. In the decision in Levesque, the court commented that the plaintiff alone could bring before the court the evidence of those facts and she failed to do it. As a result, an adverse inference was taken.
[20] There is, however, good reason to question the applicability of this analysis in the present case. In The Law of Evidence in Canada, a footnote comments that the expansive scope of examination for discovery today serves to obviate the necessity or justification for adverse inferences. In Ritchie v. Thompson, (1994), 1994 17338 (NB CA), 155 NBR (2d) 35 the New Brunswick Court of Appeal considered the Supreme Court of Canada decision in Levesque and commented that the Levesque case involved an unusual factual situation which does not have broad application. The court further commented on how changes in disclosure obligations have further limited the applicability of the Levesque decision. The court stated,
Further weakening the overuse of the twenty-five year old case is a valid point raised by the trial judge concerning the pretrial discovery available to the appellants. When Levesque and Comeau was decided, the rules of court were much more restrictive. Now, disclosure is open, there is a freer exchange of documents and discovery of witnesses. In fact, persons other than parties can be questioned on examination for discovery before trial and parties may be required to disclose the names of witnesses they intend to call.
[21] Today, in Ontario as well as New Brunswick, the discovery obligations in the context of personal injury claims routinely require disclosure of relevant treatment and employment records. In the present case, the treatment records of Dr. Ansari were produced well before trial and were marked as an exhibit at trial. Similarly, the plaintiff’s employment records were disclosed prior to trial. The employment records disclosed the identity of the plaintiff’s supervisor at The GAP. Her identity was also referred to during the plaintiff’s evidence at trial. Thus, defence counsel had full access to all of the relevant records and the identity of the potential witnesses at their disposal.
[22] It is routine in these types of cases for defence counsel to serve a summons on treating physicians or employers as part of their preparation for trial. This reflects the fact that there is no property in a witness and that these witnesses may be called by either side of the dispute. It is interesting to note that in the present case, defence counsel did, in fact, issue a summons on one of the other treating physicians who provided care to the plaintiff. This reflects the modern reality that such witnesses are not within the exclusive control of any one party and that the discovery process will provide meaningful disclosure of the information in the hands of these potential witnesses.
[23] To accept the defence position would effectively mean that a plaintiff in a personal injury action is compelled to call every relevant medical and employment witness or otherwise run the risk that the defence will seek to draw an adverse inference from the failure to call those witnesses. The implications for trial efficiency are obvious. Unnecessary witnesses would need to be called. These trials would last considerably longer and their cost would inevitably increase accordingly. These consequences are not consistent with recent decisions of the Supreme Court of Canada. For example, in Hryniak v. Mauldin, 2014 SCC 7, the court comments,
Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened.
[24] It is because of concerns like these that courts today require the litigants to make early and timely disclosure and to avoid unnecessary attendances of witnesses where a more efficient means of introducing the evidence is available. So, for example, it is entirely appropriate for a party to file medical records of a treating physician (as was done in this case) if, in fact, these records provide an adequate level of information to the trier of fact. If a party intends to take the position that these records are not adequate, in my view, there is an onus on them to either place the witness under summons or make their views known no later than the commencement of trial. A party should not expect that having received full disclosure of relevant information and records that they have no obligation to make their position known or to call witnesses to supplement evidence which they deem to be deficient in some way. They should not be allowed to wait until the end of the trial and then ask the trier of fact to draw an adverse inference from the failure of a party to call specific witnesses. On the contrary, I believe that the law of adverse inference has narrowed considerably, as the rules have been broadened to require more fulsome disclosure by the parties. Relevant case law suggests that the circumstances in which an adverse inference may be drawn by a trier of fact, based on a failure to call a witness or adduce certain evidence will be rare and should only be done with the greatest of caution, see, for example, R. v. Ogunsakin [2008] O.J. No. 10.
[25] For the above reasons, I have concluded that neither Dr. Ansari nor the plaintiff’s direct supervisor at The GAP were in the exclusive control of the plaintiff and that therefore this is not a case for the trier of fact to draw an adverse inference from the plaintiff’s failure to call these witnesses. The jury will therefore be instructed accordingly.
Mr. Justice M.K. McKelvey
Released: June 19, 2015