Kevin Kent D ’ Amico Plaintiff - v. -, 2010 ABQB 785

Court of Queen ’ s Bench of Alberta Citation: D ’ Amico v. Wiemken, 2010 ABQB 785 Date: 20101207 Docket: 0001 02733 Registry: Calgary Between: Kevin Kent D ’ Amico Plaintiff - and - Amy L. Wiemken and Calgary Handi-Bus Association Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P. R. Jeffrey _______________________________________________________ Introduction [ 1 ] The first trial of this action proceeded before another member of this Court, who reserved judgment. Before judgment was rendered the trial judge found it necessary to recuse himself.

I have been assigned to exercise jurisdiction in the matter, pursuant to Rule 391 of the Alberta Rules of Court , Alta. Reg. 390/1968. At issue is the process that will now be followed. [ 2 ] The Plaintiff, Mr. D ’ Amico, urges me to render judgment following my review of the first trial record. It is available in both written transcript and audio forms. Once I embark on that process, says the Plaintiff, it will be within the scope of my discretion to recall one or more of the witnesses for further testimony and/or counsel for further argument if I so choose.

[ 3 ] The Defendants, Calgary Handi-Bus Association and Ms. Wiemken, contend that I have no jurisdiction to render judgment based upon the first trial record unless all parties consent. The Defendants do not consent. They insist upon what they say is their right to a full trial in front of the one who will decide. They forecast that as the new trial progresses, however, the parties may consent to adopt portions of the evidence from the first trial, avoiding the necessity of recalling one or some witnesses.

If that occurs, the Defendants say that then I would have discretion to nevertheless have any such witness recalled, overriding the agreement of the parties. Background [ 4 ] This is a personal injury action arising out of an accident in 1998. Liability is admitted; the issues for the Court to determine relate to the quantum of damages to which the Plaintiff is entitled. [ 5 ] The first trial of the action was heard over seven weeks, intermittently, between June 2008 and October 2009. Closing arguments concluded in December 2009.

The trial judge reserved his decision. [ 6 ] On June 1, 2010, the first trial judge advised counsel that, in effect, it was impossible for him to continue to judgment and that therefore he was compelled to recuse himself. The reasons for that change were of a personal nature, arose from experiences after the close of the record and did not affect the record itself.

The reasons were unrelated to the evidence, its admission at trial or how the trial was conducted. [ 7 ] In July 2010, when hearing from the parties regarding next steps, the Chief Justice of this court proceeded immediately both to re-assign the matter and to give the rehearing of this matter priority access to court and judicial resources. [ 8 ] I am advised that an audio record of the trial has been retained and that it has also been transcribed.

All trial exhibits remain available, although Plaintiff's counsel advised that: “ ... certain documents which were produced during the course of this trial and which relate to [the Plaintiff's] work on the Expert Advisory Panel for the Provincial Government, were returned to Alberta Health Services at the instruction of [the trial judge]. ” [ 9 ] Plaintiff's counsel further advises that the status and whereabouts of those documents are presently unknown. [ 10 ] I have not had access to the first trial record, including the pleadings, the exhibits and any other documents produced at trial, nor to any of the written submissions of counsel directed to the first trial judge.

This was the strong preference of the Defendants, when I asked counsel during oral argument, so that if I proceed to a new trial I would not be unduly influenced by exposure to that information.

I am therefore proceeding on the basis of the submissions of counsel at this point. [ 11 ] One of the consequences of that limitation, however, is that I am without an adequate context to assess the significance that those “ certain documents ” the whereabouts of which are unknown may no longer be available for use at any re-trial. [ 12 ] Among other personal injuries suffered in the accident the Plaintiff alleges “ a mild traumatic brain injury ” and says a consequence of that injury is a “ failing/incomplete memory for certain events ” .

Again, without access to the trial record I am without an adequate context to understand or assess the relative significance of this alleged adverse impact of any re-trial upon the Plaintiff. His counsel implies that this limitation would adversely affect the Plaintiff's ability to present effectively the information he wishes in any re- trial.

Though I do not know it with certainty, it appears that the Defendants dispute everything associated with the quantum of the claim, therefore including that the Plaintiff suffers under any such limitation as a consequence of the accident. [ 13 ] One of the expert witnesses called at trial by the Plaintiff has since passed away.

[ 14 ] The Plaintiff ’ s counsel produced a draft Bill of Costs revealing that as at June 2010 costs of just under $500,000 have been incurred by the Plaintiff. His counsel estimated that a further $250,000 would be incurred to re-try the action. [ 15 ] The Defendants did not quantify their costs to date or estimate their incremental costs of any additional process, but were equally displeased at the prospect of now having to bear further costs before this matter is decided.

The opportunity to mitigate some of those additional costs by proceeding as the Plaintiff proposes, however, did not diminish the Defendants ’ overriding concern that the decision come from one that has not only heard the evidence but observed its presentation.

Positions of the Parties [ 16 ] The Plaintiff argues that “ [p]rocedural fairness, accuracy of testimony, failing memory of witnesses, and cost considerations all militate strongly in favour of this matter being re-heard by a new judge on the [first trial] record and the record alone, to the greatest extent possible. ” [ 17 ] The Plaintiff submits that with an untainted record of the first trial, including of thorough cross-examinations and access to the audio recordings, I will be in a position to come to a just, fair and reasoned solution for the parties.

Considering the extent of the costs incurred to date and practical challenges expected of bringing the numerous witnesses back to testify, including many experts, the Plaintiff submits that the balance of convenience weighs heavily in favour of proceeding on the basis of the transcript. [ 18 ] The Plaintiff also voiced concerns about the validity of a new transcript if the original transcript was used in witness preparation and about eroding memories because of the significant amount of time that has passed between the accident and now.

The Plaintiff argues that his witnesses should not be subject to credibility questions on the basis of the time that has passed. Further, because of busy schedules and the number of witnesses involved, the Plaintiff submits that it may be over a year before this trial is reconvened, something the Plaintiff should not be put through.

The Plaintiff submits that a whole new trial would simply not be fair and just considering the significant record and resources that are available to aid me in determining the action. [ 19 ] In support of his position, that I have the discretion to proceed to judgment by review of the first trial record alone regardless of all parties ’ consent, the Plaintiff relies upon Rule 391 and subsection 18(3) of the

Interpretation Act , R.S.A. 2000, c. I-8 which respectively state: Rule 391 Where any application ought to be made to or any jurisdiction exercised by the judge by whom a cause or matter has been tried or before whom any motion has been made, if that judge dies or ceases to be a judge of the court or if for any other reason it is impossible or inconvenient that the judge should act in the matter, any other judge may hear the application or otherwise exercise jurisdiction.

Interpretation Act 18(3) If an enactment provides that a proceeding, matter or thing is to be done by or before a judge, the proceeding, matter or thing, if properly commenced before a judge, may be continued or completed before any other judge of the same court. [ 20 ] The Plaintiff also referred to the decision of Parmar v . Bayley , 2001 BCSC 1394 , [2001] B.C.J. No. 2063 . In that case the trial judge was replaced by Williamson J. after trial was completed but before judgment had been rendered.

Cognizant of the potential for prejudice to the parties caused by the delay, Williamson J. wrote, at para. 13, that he intended to proceed as expeditiously as possible and then ordered, at paras. 14-15: To that end, I direct that the rehearing of this matter shall be upon official transcripts of the evidence. I reserve the right to determine that

a particular witness be recalled should I conclude that credibility is an issue and it cannot be determined upon the transcript evidence. I note, however, that it is often possible to resolve matters of credibility upon a transcript especially where there has been extensive cross- examination which I am told is the fact in this case. Counsel will have liberty to apply, once I notify them that I have completed my reading of the transcripts, to recall a particular witness if they consider it necessary.

Counsel will also have liberty to make further oral submissions at the appropriate time. [ 21 ] The Defendants contend that their fundamental right to a trial should not be eroded or outweighed by convenience or cost, nor should the procedural rules in the Rules of Court or the

Interpretation Act override their substantive rights. Although the Defendants agree that parties could agree to proceed on the basis of a transcript, they say that no party should be forced to “ take that chance. ” [ 22 ] The Defendants advised that a substantial portion of their written final argument addressed the credibility of the Plaintiff ’ s witnesses and the reliability of their evidence. They say that if I proceed on the basis of a transcript they will lose the benefit of their arguments on credibility and reliability because I will be unable to observe and question the witnesses.

The Defendants argue that a new trial is the only way for these credibility and reliability issues to be adequately considered and weighed. [ 23 ] When asked during oral argument if the support for those submissions was the appearance and demeanor of the Plaintiff ’ s witnesses as opposed to, say, inconsistencies between the various witnesses ’ evidence, the Defendants responded: A little of...I should say....a little of both...both but I would say more on the side of inconsistencies...it was probably more what they said than how they said it...but there were definitely contests between like experts...and in a few cases I think it was very important and I don ’ t know I will never know how [the trial judge] assessed credibility and reliability of the opposing experts evidence because a lot has to do with looking them in the eyes, hearing what they say, hearing how they respond to zinger questions or maybe questions from the Court.

I don ’ t know what that meant to [the trial judge] but my suspicion is that it meant a lot to him – I know it meant quite a bit to me. That it wasn ’ t just what they said its how they said and...so we have both kinds of problems. [ 24 ] Neither party offered any further case authority beyond the British Columbia Supreme Court decision in Parmar . Issues [ 25 ] The threshold issue for determination is whether the Defendants ’ proposition of law is correct. That is, are the Defendants correct that I am not permitted to proceed on the basis of the first trial record in the absence of consent?

Must I see first hand the evidence as I hear it being adduced, if any party so demands?

If the Defendants are correct on that point then the application fails and I need proceed no further, other than to set dates for the new trial. [ 26 ] If the Defendants are incorrect and I have discretion to determine the action based upon the existing record from the first trial, with or without re-calling certain of the witnesses, then I must continue on and exercise that discretion, decide whether to proceed to decision on the existing first trial record, order a new trial, or some combination of the two. [ 27 ] For the reasons that follow the Defendants are incorrect on the threshold issue.

I have discretion on whether to determine the matter based upon the record from the first trial. I therefore continue on and conclude, in the circumstances of this action and at this stage of the action, that an entirely new trial is not warranted. Analysis [ 28 ] In Clarke v. Trask (1901), 1 O.L.R. 207 (H.C.J.) , Falconbridge C. J. found that a trial de novo was required after a judge who had heard a case and reserved for further consideration passed away before rendering a decision. Although Falconbridge C.J. noted that

the easiest manner in which to dispense with the case was to set it down for argument on the evidence already heard, he felt he did not have the power to do so without consent of the parties. [ 29 ] The matter of Coleshill v. Manchester Corporation , [1928] 1 K.B. 776 , was being heard by judge and jury. The first trial judge died midway through the trial. A second judge continued thereafter.

Scrutton, L.J. observed, at p. 785-6: I can understand that in the unprecedented and painful circumstances it is unnecessary to take any objection to what happened, but I think it is a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in Court in the course of the trial before the jury and another judge, it not being a case of evidence being taken on commission or before an examiner. [ 30 ] The next year it appears the court departed from that caution. MacDonald J. in Royal Bank of Canada v.

Nichols (1985), 1985 CanLII 5164 (PE SCTD) , 56 Nfld. & P.E.I.R. 340 , refers to these cases, at para. 11-12: Megarry cites the case of Re Application of British Reinforced Concrete Engineering Co. Ltd. (1929), 45 T.L.R. l86 where the dictum of Scrutton, L.J. [in Coleshill, above] was declined and the trial continued under a second judge on a finding that there would be no conflict of evidence. Clearly if there is a conflict of evidence, where one judge hears part of the conflicting evidence, then the trial should not continue before a second judge. In Bolton v.

Bolton , [l949] 2 All E.R. 908, Lord Merriman stated, at 9l0 : It must be said plainly that this was a wholly irregular proceeding and ought not to be repeated. Everyone can understand the temptation to make a short cut like this, but, particularly in a case which is going to depend on the conflict between the two principal witnesses, it is essential to remember the commonplace that it is important not merely that justice should be done but that it should manifestly be seen to be done. In the latter case the evidence was found to be in direct conflict.

Nevertheless, the court refused a re-hearing because the case was “ so clear ” . [ 31 ] Clarke , Coleshill and Bolton probably predated the existence of the technology we now enjoy to retain an audio recording of a complete trial and certainly predated any searchable digital audio recording as we have in this case.

The accuracy of written transcripts can be verified against audio recordings, unlike the stenographic renditions of trial evidence years ago. [ 32 ] More significantly from a legal perspective, those three cases predated any statutory power to nominate another judge to exercise jurisdiction over a matter that was already commenced. The Plaintiff says that in Alberta Rule 391 and subsection 18(3) of the

Interpretation Act bestow that power. I agree. [ 33 ] Rule 391 gives the power to the successor judge to act where, as here, a trial has concluded.

It states, again, in relevant part: Where ...the judge by whom a cause or matter has been tried ..., ... if ... it is impossible ... that the judge should act in the matter, any other judge may hear the application or otherwise exercise jurisdiction. ( emphasis added ) While this wording does not expressly state that after a matter “ has been tried ” the successor judge may pick up where the first left off, that scenario is nevertheless within the breadth of the wording.

The rule is broad in order to address in a single rule the wide range of processes that come before judges of this court and the wide range of possible times within the course of each such process that a new judge may have to be assigned. In my view Rule 391 permits the successor judge to determine the process that will best ensure a fair trial in the particular circumstances. [ 34 ] Rule 391 says that after a matter “ has been tried ” the successor judge may “ hear the application or otherwise exercise jurisdiction ” ( emphasis added ).

It could be argued that the phrase “ otherwise exercise jurisdiction ” merely refers to a successor judge exercising jurisdiction in those proceedings that do not involve any oral hearing. An alternate

interpretation is that it refers to a successor

judge exercising jurisdiction, like here, otherwise than hearing the matter; that is, continuing on in those matters that have already been heard or tried. [ 35 ] Whichever it means, nothing in Rule 391 suggests that this power is subject to the prior consent of each party.

In my view, however, the Rule does both: grant jurisdiction to the successor judge to re-hear, if appropriate, or to continue on, if appropriate, in all types of matters coming before this court. [ 36 ] Although this application was brought and heard pursuant to the old rules, given the recent coming into force of new court rules in Alberta ( Alberta Rules of Court , A.R. 124/2010), a comment on the new is warranted. The comparable new rule, Rule 13.1 , has different wording than the old Rule 391.

Rule 13.1 says that in circumstances such as these, the new judge “ may act in place of or replace another judge ” . [ 37 ] Principles of statutory

interpretation suggest that each of these terms ( “ in place of ” and “ replace ” ) are not to be ascribed the same meaning; the legislators would not have repeated themselves, using two terms for the same thing where one would suffice [See, for example, Pigeon, L-P. Drafting and Interpreting Legislation . Toronto, Ontario: The Carswell Co. Ltd.; 1988, at p. 46].

I need not decide the meaning or effect of each of these two distinct terms within this application, but will observe that for “ in place of ” to mean something other than “ replace ” it likely refers to filling in for the first judge, just not permanently as implied by “ replace ” . It could be for a specific step or task that the successor acts “ in place of ” the former; it could be for a set period of time. But at the conclusion of that task or time period the actions of the successor judge cease before the completion of the matter.

Like the old Rule 391 , its breadth seems to permit but not require the successor to pick up where the first left off, such as here at the end of the first trial record, and continue on to conclusion. [ 38 ] I note further that the new Rule 6.10 contemplates an “ electronic hearing. ” In an electronic hearing the parties and the judge can all hear each other, but not see each other. The Rule further provides that, on application, the electronic hearing can be ordered by the court in the absence of consent of the parties. [ 39 ] Subsection 18(3) of the

Interpretation Act is more conclusive on the threshold issue. In my view it more clearly grants to the successor judge the power to pick-up where the predecessor left off regardless of the consent of any of the litigants.

It says, again in part: “ … the proceeding, matter or thing … may be continued or completed before any other judge of the same court. ” Both the terms “ completed ” and “ continued ” , but particularly “ continued ” , imply carrying on from where the matter was left, not restarting from the beginning. [ 40 ] The Defendants did not assert that these statutory powers were ultra vires , trumped perhaps by some long standing civil right, convention or constitutional provision. They say only that the

Interpretation Act and the Rules of Court are procedural and therefore cannot override their pre-existing substantive right to a new trial. [ 41 ] Regarding Rule 391, subsection 63(2) of the Judicature Act , R.S.A. 2000, c. J-2, states: The Alberta Rules of Court are validated notwithstanding that any provision in the Rules may affect substantive rights. [ 42 ] Regarding the

Interpretation Act , nothing was presented to me to indicate that it is merely procedural or that it is subordinate to substantive common law rights, assuming without deciding that the Defendants are correct that the threshold issue engages a substantive right not the scope of my procedural jurisdiction. The

Interpretation Act applies to all provincial legislation, substantive, procedural or otherwise, and to all proceedings, matters and things commenced pursuant thereto. The action before me is such a proceeding. [ 43 ] Other provinces more expressly allow a judge to proceed on the basis of a transcript without consent of the parties.

The British Columbia equivalent of Rule 391 , in force when Parmar was decided, gave the judge discretion to proceed on the basis of the transcript and further allowed a judge, if she did so, to recall witnesses and receive other or additional evidence: British Columbia Supreme Court Rules Rule 64(10) and (11) [now superseded by Supreme Court Civil Rules , B.C. Reg. 168/2009 Rule 23-1 subsections (10) to (12)]. Section 26(8) of the Prince Edward Island Judicature Act , R.S.P.E.I. 1988, c. J-2.1, has similar effect. It does not appear

that any of those more express powers in the legislation of other jurisdictions has been challenged as being in violation of any paramount substantive right, nor have the Defendants presented any authority to that effect. [ 44 ] Finally, and in any event of the foregoing statutory powers, it is within the court ’ s inherent power to direct its process to achieve both fairness and the appearance of fairness: Riviera Developments Inc . v . Midd Financial Corp. (1995), 1995 CanLII 9017 (AB KB) , 167 A.R. 69 (Q.B.) at para. 30 .

In my view this entails the power to proceed to decision, in these circumstances, on the first trial record. [ 45 ] Lord Donovan in another context in Myers v. D.P.P. (1965), 48 Cr. App. R. 348 (H.L.) , said, at 392 : The common law is moulded by the judges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds. Particularly is this so in the field of procedural law. [ 46 ] Therefore the proposition of law espoused by the Defendants on the threshold issue is not correct.

I am satisfied that with respect to this civil action I have discretion to proceed to judgment on the basis of the existing record notwithstanding the objection of the Defendants. [ 47 ] Given that conclusion, I then considered whether to proceed to judgment on the basis of the existing record, perhaps later supplemented by recalled witnesses or counsel if I determine warranted, or to instead direct a new trial. The guiding principle in the exercise of this discretion is ensuring a fair trial process. [ 48 ] Trial fairness is ultimately measured by reference to the entirety of the process: R. v.

Darrach , 2000 SCC 46 , [2000] 2 S.C.R. 443 , at paras. 23 - 25 ; R. v. Rose , 1998 CanLII 768 (SCC) , [1998] 3 S.C.R. 262 , R . v. N.S. , 2010 ONCA 670 , 102 O.R. (3d) 161 , at para. 51 . “ Fairness takes into account ... the broader societal concern that the process maintains public confidence ” : R . v.

N.S. , at para. 53 . [ 49 ] The Supreme Court of Canada confirmed an appellate court ’ s jurisdiction to make a fresh assessment of the evidence based upon the existing trial record, rather than remit it back for re-hearing “ when they deem such an assessment to be in the interests of justice and feasible on a practical level ” : Hollis v. Dow Corning Corp. , 1995 CanLII 55 (SCC) , [1995] 4 S.C.R. 634 . I am not sitting on appeal but the factors considered by the Supreme Court of Canada are nevertheless instructive.

LaForest J. elaborated, at para. 33: In this case, there was sufficient evidence on the record to allow the Court of Appeal to make a full and proper re-assessment of the duty to warn issue without sending the case back to trial. While appellate courts are generally, and justifiably, wary of making findings of fact without having the advantage of seeing and hearing testimony first-hand, I do not believe that such concerns arise in this case because the bulk of the critical evidence adduced at trial was documentary, not testimonial. In light of the fact that Ms.

Hollis has now waited close to seven years for the final resolution of her claim, and the high costs already created by the unusual length of this appeal process, I believe the Court of Appeal followed the proper course in weighing and assessing this evidence in order to achieve a measure of finality in this case; see, e.g., Davie Shipbuilding Ltd. v. The Queen , 1984 CanLII 5370 (FCA) , [1984] 1 F.C. 461 , at p. 464 (C.A.) ; Nova, An Alberta Corporation v. Guelph Engineering Co. (1989), 1989 ABCA 253 (CanLII) , 70 Alta. L.R. (2d) 97 (Alta. C.A.) , at pp. 110-12 . [ 50 ] In Harris v.

Beck Estate , 2009 PECA 8 , 284 Nfld. & P.E.I.R. 29 , the Prince Edward Island Court of Appeal was faced with whether to send back a matter for re-trial or determine the matter based upon the first trial record. It wrote, at para. 71: Having concluded that the trial judge made errors by not properly conducting the tripartite test, I pose the question as to whether the appellant should be awarded a new trial or whether I should conduct the test myself. I have concluded that it would not be in the interests of justice to order a new trial in the circumstances of this case.

This court has an adequate record before us; we have the benefit of all the expert opinions and a transcript of their evidence as well as the full appellant's evidence. We are not required to make findings of credibility, except among the expert opinions. Time is a material factor. The events in relation to this question occurred in 1986, some twenty-three years ago. Costs of the litigation are also a significant factor. As well, neither party has asked for a new trial. All of these factors taken together lead me to conclude that I should apply the test myself within this appeal. [ 51 ] Donald J.M.

Brown, Q.C. in Civil Appeals , Looseleaf (Toronto: Canvasback Publishing Inc., 2010) summarizes the

jurisprudence in this regard, stating (citations omitted), at para. 6:1112: ...whether it is appropriate for the court to substitute its judgment for that of the court below or to send the matter back for redetermination will depend upon the state of the record, the nature of the error, the character of the initial decision-maker, any practicalities involved, including the wishes of the parties, and the applicable principles that have been developed for guidance in making such choices. [ 52 ] He later writes, in respect of one of those principles, at para. 6:2120: The cost of a new trial, to say nothing of the personal trauma it may involve, has led to a general predisposition against an order for a new trial. 21 This view is captured in the principle that a new trial is to be ordered only where not to do so would result in a “ substantial wrong or miscarriage of justice. ” 22 However, unless the error is harmless or the result inevitable, an error in the process of the trial or in decision-making will almost always be characterized as one resulting in a substantial wrong or miscarriage of justice. 21 E.g.

Edwards (Guardian ad litem of) v. Moron, 2003 BCCA 687 at para. 38 ; Mitsui & Co. (Point Aconi) Ltd. v. Jones Power Co. , (2000) 2000 NSCA 95 (CanLII) , N.S.J. No. 257 (NSCA) at para. 93 . In some jurisdictions, it is legislatively mandated: Ontario Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134; New Brunswick Rule 62.21(7) and (9); Prince Edward Island Judicature Act , R.S.P.E.I. 1988, c. J-2 .I, s. 21(7) . 22 Carswell v. Toronto Ry. (1911), 24 0.L..R. 339, per Merideth J.A. at pp. 350-1 (Ont. C.A.), apprv ’ d Schubert v. Schubert, [1978] A.J. No. 59 (Alta. C.A.) ; Earle v.

Smith (1971) , 1971 CanLII 2049 (NS CA) , 2 N.S.R. (2d) 572 ) (NSCA). See also Arland v. Taylor, 1955 CanLII 145 (ON CA) , [1955] 3 D.L.R 358 (Ont. C.

A) at pp. 364-5 , apprv ’ d Hayes v. Thompson and Bell (1985), 1985 CanLII 151 (BC CA) , 60 B.C.L.R. 252 (BCCA) ; Christie v. Westcom Radio Group Ltd. ,

(1990) B.C.J. No. 2678 (BCCA) . [ 53 ] In this case most of the considerations favour proceeding on the basis of the existing trial record. The reason for the first trial judge recusing himself did not affect the trial record. It cannot be said that there was any error in the process of that trial. The state of the record has correctly been described by the Plaintiff as untainted by the cause of the recusal. [ 54 ] The fact the record is complete further reduces the concern that the process of picking up where the first trial judge left off would be unfair.

In cases where the second judge comes in part way through a trial there is a risk of both inconsistent approaches and of evidentiary rulings by the successor judge during the continuation that are based on only hearing some witnesses (from the record of the first portion) but other witnesses being both seen and heard (during the remainder). [ 55 ] The condition of the existing record reduces the need to direct a new trial, it being available in both audio and print form.

I will be able to hear each witness, their tone, inflections, pauses, equivocations, wavering, tentativeness, passion, exasperation, conviction, defensiveness and so on. Only visual cues will be absent. A witness ’ demeanor is a function of more than appearance. [ 56 ] Further in this regard, the parties have all had the benefit of a full trial. All were able to test the veracity of the case against them through cross-examination.

When cross-examining witnesses, the parties were able to pursue further any visual cues or indications they may have thought revealed vulnerability from witnesses for the party(ies) opposite. [ 57 ] The magnitude of what hangs in the balance between the parties, while not at the same level as, say, the apprehension of one ’ s child, the cessation of life support or the loss of one ’ s personal liberty, is nonetheless significant. The investment the parties have made in the litigation and the intensity of their advocacy to date imply no less.

Notably, however, it is the Plaintiff, despite bearing the burden of proof, that is prepared to forego a re-trial. [ 58 ] The cost consequences of a re-trial, which here have been demonstrated to be substantial, can impede access to justice. It is

easy to understand why Brown has found from review of other cases a ‘ predisposition ’ against re-trials by appellate courts because of the additional costs they impose. The court has discretion in its award of costs at the conclusion of a re-trial to mitigate that impact, but typically it only tempers the impact and then only for the victor.

Here the potential for the added financial and other costs of a re-trial to adversely impact the Plaintiff militates strongly in favour of using the existing trial record. [ 59 ] The time that has passed since the alleged cause of action arose, in 1998, further militates in favour of proceeding to decision without a re-trial. It is fair to say, though, that no party alleged prejudice from any additional delay alone. [ 60 ] The Defendants say that credibility is a very important aspect of this action. Certainly the degree to which credibility is material to the issue(

s) to be decided must be a significant consideration and militates in favour of directing a re-trial. The Defendants submitted that proceeding on the basis of a transcript would not be sufficient as I would not be able to observe the demeanor of the witnesses and determine the impact thereof on credibility.

The Defendants explained that they submitted an extensive written argument at the end of the original trial, more than a quarter of which challenged the credibility and reliability of the Plaintiff ’ s witnesses. [ 61 ] As the court in Parmar correctly observed, at para. 14, issues of credibility can often be resolved on the basis of a transcript, particularly when there has been extensive cross-examination.

I infer from the duration of trial that cross-examination was extensive. [ 62 ] Credibility is more reliably determined by gauging such things as the internal consistency of a witness ’ testimony, its consistency with other evidence, its consistency with out of court statements or conduct of the witness, its reliability, and its plausibility in the context of the overall circumstances, than by relying on demeanour evidence. [ 63 ] In considering whether a complainant could testify while wearing a niqab, which would cover all of her face except her eyes, the Ontario Court of Appeal in R. v.

N.S . , at para. 55 , said: Mr. Butt, counsel for N.S., makes the valid point that credibility assessments based on demeanour can be unreliable and flat-out wrong. Assessments of credibility based on demeanour can reflect cultural assumptions and biases. Judgments based on demeanour are no substitute for those based on a critical analysis of the substance of the entire evidence. Appellate courts have repeatedly cautioned against relying exclusively or even predominantly on demeanour to determine credibility. Mr.

Butt also makes the valid point that the trier of fact does not lose all aspects of demeanour evidence if the witness wears a niqab. The trier of fact will still be able to consider the witness ’ s body language, her eyes, her tone of voice and the manner in which she responds to questions. All are important aspects of demeanour. [ 64 ] In the civil context also, where the burden of proof is less onerous, the limits of demeanour in assessing credibility have been acknowledged. In Faryna v.

Chorny , 1951 CanLII 252 (BC CA) , [1952] 2 D.L.R. 354 (B.C.C.A.) , O ’ Halloran J.A. wrote at 357: The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. [ 65 ] While the Defendants ’ concerns that the decision maker must see, not just hear, the witnesses as they testify in order to effectively assess their credibility, I am not persuaded that it is necessary in this case.

First, the Defendants ’ counsel acknowledged during argument that the support for their closing submissions that the Plaintiff ’ s case lacked credibility (and reliability) was “ more on the side of inconsistencies...it was probably more what they said than how they said it. ” Second, proceeding on the record here still enables me to hear the witnesses. I will be able to assess their tone of voice and, to a degree, the manner in which they answer questions.

Third, after a trial transpiring intermittently over 16 months, when deliberating and drafting the judgment the first trial judge ’ s recollection of facial expressions and other demeanor evidence is likely to have faded in any event. Fourth, the parties are at liberty to apply to me to recall specific witnesses. Once I have reviewed the existing record I may wish to do so regardless of any such request from counsel. [ 66 ] For these reasons I consider the process that better serves the interests of justice to be to proceed to judgment based upon the existing record.

Proceeding in this manner in this case does not result in an unfair trial process. Similarly, I do not consider proceeding to decision on the existing completed evidentiary record to at all harm public confidence in the administration of justice.

Conclusion and Next Steps [ 67 ] I therefore grant the Plaintiff ’ s application. Costs of the application will be in the cause. [ 68 ] At the time of arguing this application the parties were canvassed as to their earliest availability for a re-trial, in the event the application was denied. That discussion resulted in the parties and the court blocking off April and May 2011. The parties are directed to continue to keep available this block of time until after a conference with the court regarding the scheduling of such further steps as may then appear necessary.

The court shall contact counsel shortly to arrange that conference. Heard on the 8 th day of October, 2010. Dated at the City of Calgary, Alberta this 7 th day of December, 2010. P.R. Jeffrey J.C.Q.B.A. Appearances: Barry Steinfeld Matthew B. White McLeod & Company LLP for the Plaintiff Ken Haluschak Bryan & Company LLP for the Defendants