2017 ONSC 7248, 2017 ONSC 7248

CITATION : Sheldon v Reyna , 2017 ONSC 7248 COURT FILE NO.: 13-58799 DATE: 2017/12/04 SUPERIOR COURT OF JUSTICE - ONTARIO RE: Rosemary Sheldon (Plaintiff) AND Manuel Reyna (Defendant) BEFORE: Madam Justice H. J. Williams COUNSEL: Colleen Burn, Dani Granmaître, Counsel for the Plaintiff Daniel I. Reisler, Jessica L.

Kuredjian, Counsel for the Respondent HEARD: December 1, 2017 RULING MOTION TO RECALL THE PLAINTIFF [ 1 ] In this trial of a car accident action, the plaintiff’s counsel has brought a motion for leave under Rule 53.01(3) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, (the “ Rules ”) to recall the plaintiff as a witness. [ 2 ] The plaintiff’s counsel argues that the plaintiff should be given an opportunity to answer questions about eight documents, now marked as Exhibits 117 to 124, that were in the file of the plaintiff’s family doctor (“the doctor”) and which had not been produced prior to trial. [ 3 ] Neither the plaintiff’s nor the defendant’s counsel had seen the documents before the defendant’s counsel requested the doctor’s complete file during the doctor’s cross-examination. [ 4 ] The plaintiff had completed her testimony before the doctor testified. [ 5 ] The plaintiff’s counsel argues that it would be unfair for the plaintiff not to be given the opportunity to explain the documents.

The plaintiff’s counsel also relies on the rule in Browne v. Dunn . [ 6 ] The defendant’s counsel opposes the leave request. The defendant’s counsel argues that the plaintiff should have produced the documents before the trial. The defendant’s counsel also argues that the rule in Browne v. Dunn is not triggered in this situation. The rule applies when a party challenges the credibility of a witness by calling evidence that contradicts the evidence given by the witness and requires that the witness be given an opportunity to explain the contradiction in cross-examination.

The defendant’s counsel argues that, in this case, the defendant had not attempted to contradict anything the plaintiff had said to the doctor and that the doctor did not comment on anything the plaintiff had said during the trial. [ 7 ] Both counsel rely on two decisions of J.W. Quinn J. in Griffi v. Lee, 2005 CarswellOnt 7550 and 2007 CarswellOnt 2231 . [ 8 ] With one exception, a page of notes taken by the doctor in 2006 [1] , the documents that were produced during the doctor’s cross-examination post-date the plaintiff’s 2011 car accident.

The documents, other than the 2006 note, were either prepared by the plaintiff or include hand-writing which either appears to be or was identified by the doctor as being that of the plaintiff. Several of the documents appear to relate to anticipated future communications between the doctor and the plaintiff’s insurers.

One of the documents, for example, was a “suggested format” for reports to the plaintiff’s disability insurer and included a list of the plaintiff’s limitations. [ 9 ] On cross-examination of the doctor, the defendant’s counsel suggested that the plaintiff was attempting to manage the doctor’s handling of her medical case, a suggestion the doctor did not accept. [ 10 ] This issue of recalling the plaintiff would not have arisen if the documents had been included among the doctor’s records that were produced prior to the trial. At least some of the documents also should have been disclosed in

Schedule A or C to the plaintiff’s affidavit of documents. [ 11 ] Regardless of who should have ensured that the documents were available before the trial, and I feel that I should repeat that the plaintiff’s counsel had not seen the documents prior to the doctor’s cross-examination, this situation raises trial fairness considerations similar to those in Browne v. Dunn . The defendant’s counsel cannot be said to have violated the rule in Browne v.

Dunn; obviously, the defendant’s counsel could not have given the plaintiff an opportunity to explain documents on cross-examination that neither party’s counsel knew about at the time the plaintiff was cross-examined. However, the documents have now been produced and the suggestion has been made that the plaintiff was effectively trying to put words in her doctor’s mouth. [ 12 ] I have considered the factors listed in paragraph 12 of the 2007 Griffi v. Lee decision. For example, I am satisfied that the

plaintiff’s counsel has explained why she wishes to recall the plaintiff and that her decision is not rooted in a deliberate choice she made to conduct the plaintiff’s case in a certain way that did not pan out. Further, as the defendant’s counsel will have the right to cross- examine the plaintiff, I see no irreparable prejudice to the defendant that would be caused by recalling the plaintiff, particularly if certain restrictions are imposed on the plaintiff’s counsel’s pre-recall testimony communications with the plaintiff.

This is also a situation in which an unanticipated event—the disclosure of new documents—gave rise to the request to recall a witness. [ 13 ] In Griffi v. Lee , J.W. Quinn J. said that after considering the relevant factors, the court should step back, look at the whole picture and ensure that a proper balance is struck between the accountability of counsel and the interests of justice. In this case, neither counsel was aware of the documents before the doctor testified and I do not consider counsel accountability to be a significant consideration.

The interests of justice are the key consideration and they require that the plaintiff be given an opportunity to answer questions about the documents. [ 14 ] In short, fairness requires that the plaintiff be recalled. [ 15 ] The plaintiff’s counsel requested directions from the court with respect to appropriate communications with the plaintiff regarding this matter in the event that leave to recall the plaintiff were granted.

The plaintiff’s counsel proposed that she would meet with the plaintiff to review and discuss the eight new documents but that she would not discuss with the plaintiff any of the testimony given at the trial to date. (Although the plaintiff obviously has the right to be present in the courtroom throughout the trial, she had not returned to court following the last day of her testimony.) [ 16 ] The plaintiff’s counsel noted, and I agree, that this situation does not fit neatly into any of the scenarios in Rule 5.4-2 of the Rules of Professional Conduct , which deals with communications with witnesses. [ 17 ] In the circumstances and having regard both to Rule 5.4-2, above, and Rule 52.06(2) of the Rules , which provides that while trial judges may not exclude parties from the courtroom, they may order parties to testify before any other witnesses, I agree with the plaintiff’s counsel’s proposal. [ 18 ] In conclusion: (

a) Leave is granted to the plaintiff’s counsel to recall the plaintiff to answer questions arising from the eight documents. The defendant’s counsel shall have the right to cross-examine the plaintiff on the documents and her new testimony. (

b) The plaintiff’s counsel may meet with the plaintiff before the plaintiff is recalled to review and discuss the eight documents but shall not discuss with the plaintiff any of the testimony given at the trial prior to the completion of the plaintiff’s recall testimony, including but not limited to the plaintiff’s testimony and that of the doctor. Madam Justice H.J. Williams Date: 2017/12/04 CITATION : Sheldon v Reyna , 2017 ONSC 7248 COURT FILE NO.: 13-58799 DATE: 2017/12/04

ONTARIO SUPERIOR COURT OF JUSTICE RE: Rosemary Sheldon (Plaintiff) AND Manuel Reyna (Respondent) BEFORE: Madam Justice H. J. Williams COUNSEL: Colleen Burn, Dani Granmaître, Counsel for the Plaintiff Daniel I. Reisler, Jessica L. Kuredjian, Counsel for the Defendant HEARD: 2017/12/01 RULING MOTION TO RECALL THE PLAINTIFF Madam Justice H.J. Williams Released: 2017/12/04