PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION. Donald Dover and Evelyn Dover

Citation: Dover v. Gov of PEI et ors. Date: 20031229 2003 PESCTD 106 Docket: GSC-16511 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Between: And: Donald Dover and Evelyn Dover Government of Prince Edward Island and Frank G. Driscoll and William V. Acorn Prince Edward Island Supreme Court - Trial Division (In Chambers) (Ruling on motion to reopen trial) Before: Jenkins J. Trial Dates: October 27, 28, 29, 30, 2003 Motion Heard: November 14, 2003 Date of Ruling: December 29, 2003 (8 pages) Plaintiffs Defendants PRACTICE: trial - motion to reopen trial. CASES CONSIDERED: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2001), 204 D.L.R. (4 th ) 545 (S.C.C.); Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.); Scott v. Cook (1970), 12 D.L.R. (3d) 113; Matzelle Estate v. Father Bernard Prince Society of the Precious Blood, [1996] O.J. No. 2605 (Ont. Gen. Div.); Sunny Isle Farms Limited v. Mayhew, [1972] 2 Nfld. & P.E.I.R. 21 (P.E.S.C.T.D.); Woodworth v. Gagne & Gagne, [1935] 3 W.W.R. 49; Devins v. Hannah, [1921] 3 W.W.R. 350 (Sask. C.A.); Barker v. Furlong, [1891] 2 Ch. 172; Tepper v. Valley Equipment Ltd., [1997] N.B.J. No. 78 (N.B.C.A.). RULES CONSIDERED: Rules of Civil Procedure, Province of Prince Edward Island, Rule 52.07 and Rule 1.04(1). Appearances: Gregory B. Collins, for the Plaintiffs Ruth M. DeMone, for the Defendants

Jenkins J.: [1] Days following the close of evidence and argument on this four day trial, and before any decision was rendered, the Plaintiffs sought leave to reopen the trial to introduce evidence of Cpl. Mike Quinn of the Charlottetown Police. [2] The central issue in the proceeding is whether the Sheriff had care of a trailer and cube van when they were stored and later stolen. In the middle of a night in May 1996, the operators of Amigo s Gym attempted to move their gym equipment out of the Plaintiffs building in Charlottetown and into the transfer trailer and cube van. Upon learning of this clandestine activity, the Plaintiff Donald Dover took steps to block the move. He involved the Charlottetown Police, who called out Deputy Sheriff William Acorn. Later on, both the landlord and the tenant brought their lawyers onto the scene. When they could not resolve matters, the Prothonotary George MacMillan was fetched from his home and the police assisted by taking him to the scene. Some time not too long before daybreak, the Prothonotary brokered some arrangement, he says between the lawyers, which apparently satisfied everyone for the time being, and most everyone left the scene. [3] The next morning, which was a holiday, the trailer and van were in the Government parking lot in downtown Charlottetown. The following day, the custodians of the Government building called the Sheriff and required that the trailer and van be moved. The Sheriff moved them to the Liquor Commission warehouse loading area in Charlottetown. During the second night following, the trailer with its contents of gym equipment disappeared. [4] Cpl. Quinn is a well-known representative of the City Police. Reference to him was made, though not with special prominence, during testimony of various witnesses. He may have been present during the discussions which took place on the scene among the Prothonotary and the two solicitors. [5] The role of the Sheriff as bailee or his responsibility otherwise regarding the chattels is central to the case. During the trial both parties brought forth evidence as to what arrangement or agreement was made. The Plaintiffs assert the Sheriff took the vehicles into his safe keeping on behalf of the parties until they could get before a judge to resolve their competing claims. The Defendants deny the Sheriff undertook any responsibility regarding that property. Deputy Sheriff Acorn testified he was not privy to any agreement and did not take possession of the vehicles or their contents or assume any related obligations. He says he went home to bed. The Prothonotary Mr. MacMillan testified that the tenant was claiming ownership, the landlord was claiming possession in distress, and the lawyers for the claimants agreed that neither would try to take the vehicles and their contents into their exclusive actual possession that night and the matter would be soon decided by a judge. Mr. MacMillan did not support the theory of the

Page: 4 Plaintiffs case that the Sheriff took legal or physical possession or custody of the vehicles and their contents. [6] On this motion, the Plaintiff Donald Dover deposed that after the close of trial, his counsel was able to learn from Cpl. Quinn that he has information and is able to testify regarding: the police attendance at the premises on the night the tenant attempted to remove the gym equipment; his understanding of the Sheriff s involvement; whether the vehicles were to be left in the Sheriff s custody; the police involvement in movement of the vehicles from the premises to the Government parking lot; and when the trailer was reported stolen. [7] The Plaintiffs say their counsel did not call Cpl. Quinn to testify at trial because based on the testimony expected from George MacMillan, they decided testimony from the City Police would be unnecessary. According to the Plaintiff Donald Dover, about a week before trial, they learned for the first time, from the Defendants Pretrial Brief, that Mr. MacMillan would be a defence witness. Plaintiffs counsel immediately spoke with Mr. MacMillan, and from that conversation he concluded that Mr. MacMillan s evidence would be helpful to the Plaintiffs specifically that it should resolve any questions about the Prothonotary directing the Sheriff to take the vehicles into the Sheriff s care that night. Plaintiffs counsel so advised the Defenants counsel. A few days later, still before trial, Mr. MacMillan clarified and advised Plaintiffs counsel in writing to the effect that his evidence would not be helpful to the Plaintiffs case. At this point, the Plaintiff and his counsel considered it almost impossible to determine what Mr. MacMillan would testify until he actually testified. The Plaintiffs and their counsel retained the hope that Mr. MacMillan would confirm the Plaintiffs position and evidence. They specifically did not anticipate he would provide evidence that contradicted the Plaintiffs case. Once Mr. MacMillan testified and the contradiction appeared, Plaintiffs counsel tried unsuccessfully to speak with Cpl. Quinn. They exchanged phone messages; but they made meaningful contact only after the trial was closed. None of the Plaintiff Donald Dover, his lawyer on the landlord distress, his original counsel on the action, or his trial counsel, had spoken to Cpl. Quinn about the matter since 1996. The Court is not informed that the information obtained by Plaintiffs counsel after trial was previously disclosed to Plaintiffs counsel. [8] The Plaintiff Donald Dover stated the essence of his plight this way: Based on the expected testimony of George MacMillan, I did not feel that Corporal Quinn s evidence would be required and when his testimony became essential, we were unable to contact Corporal Quinn. [9] The Defendant opposes the motion. Defendants counsel points out that Cpl. Quinn and his involvement on the scene were always well-known to all concerned. The Plaintiff chose not to call him as a witness in the Plaintiffs case, and again chose not to

Page: 5 call Cpl. Quinn or any other evidence in rebuttal. The incident occurred over seven years ago, the action was commenced over four years ago, the pleadings make it clear that the Defendants dispute the Plaintiffs position that the Sheriff took the vehicles and their contents into his care, and in any event, the Plaintiffs and their counsel were aware at the very latest during the week before trial of the nature and effect of Mr. MacMillan s evidence. [10] It is common ground that a trial judge has the discretion to reopen a trial in a civil case to permit the calling of additional evidence. What is at issue is the test of how this discretion should be exercised generally, and more particularly how the particular principles should be applied in this particular case. [11] The question of what care should be taken in exercising this discretion has been the subject of considerable judicial discussion over the past century. The case law on the issue is not entirely clear. Framing of applicable principles is also clouded by various scenarios in which the issue arises. After having read the authorities cited by counsel and further authorities, and considering the objectives at play, fairly straightforward principles and corollaries emerge for application to the present case. [12] First of all, the focus of this inquiry is reopening of a trial by a trial judge to hear further evidence before decision is rendered. This scenario may be differentiated from motions to reopen which occur in three other scenarios not under consideration here: after judgment is pronounced, but before an order is signed; on a motion on appeal, rather than to the trial judge; and on a motion on a criminal proceeding. [13] The most recent and leading authority is 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2001), 204 D.L.R. (4 th ) 545 (S.C.C.), at paragraphs 59 to 64. Dealing with a similar post-trial scenario, albeit with distinguishable facts, Major J., on behalf of the Court brought forward with approval the principles in the old cases most commonly cited by reference to Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.) and the more recent statement of the test stated by Grant J. in Scott v. Cook (1970), 12 D.L.R. (3d) 113. Although Sagaz Industries, supra does not mention it, the Supreme Court judgment effectively adopts the test previously set out in enumerated form by Chapnik J. in Matzelle Estate v. Father Bernard Prince Society of the Precious Blood, [1996] O.J. No. 2605 (Ont. Gen. Div.). From all of this, the following statement of principles applicable to the present case can be derived: (i) Until judgment has been entered, a trial judge has a discretion to reopen the trial and hear fresh evidence. (ii) In exercising such discretion, the judge should be guided by the two-fold test: that the evidence would probably (sometimes stated might probably) have changed the result at trial; and the evidence could not have been discovered by reasonable diligence. (iii) The power to reopen should be exercised sparingly. The court should discourage unwarranted attempts to bring forward evidence available at trial. (iv) Where justice

Page: 6 demands it and particularly where fraud is involved or the court may have been deliberately mislead, a judge is justified in departing from the diligence requirement in order to prevent a miscarriage of justice. Matzelle Estate and Clayton cases contain further guidance regarding principles applicable for the motion to reopen is brought after judgment has been pronounced and before judgment is entered. In Sagaz Industries, supra the Supreme Court advised that in exercising the discretion the trial judge should reopen a trial sparingly and with the greatest care so that fraud and abuse of the court process does not result. The trial judge is in the best position to decide whether, at the expense of finality, fairness dictates that the trial be reopened. In Scott v. Cook, supra, the direction given was that both branches of the mentioned two-fold test must be met. [14] The leading authority in this jurisdiction was Sunny Isle Farms Limited v. Mayhew, [1972] 2 Nfld. & P.E.I.R. 21 (P.E.S.C.T.D.). Nicholson J. s canvass of the law and the competing principles is instructive. The old English and Canadian case law and some recent pronouncements provide some useful corollaries to the basic principles: A trial judge has an untrammelled discretion relying upon trained experience to prevent abuse, the fundamental consideration being that a miscarriage of justice does not occur: Clayton, supra. It is a serious matter to reopen a trial, and should never be done unless it seems imperative in the interests of justice; if not, fraud and abuse of the court process would likely result: Woodworth v. Gagne & Gagne, [1935] 3 W.W.R. 49. Where issues of fact are contested in a long trial and where questions of credibility arise, it might be unfair to admit further evidence: Clayton, supra. The general rule is that when trial takes place no evidence should be admitted after close of trial. However, the trial judge has a discretion to admit further evidence, either for his own satisfaction or where the interests of justice require it: Devins v. Hannah, [1921] 3 W.W.R. 350 (Sask. C.A.). Reopening after the arguments are heard has been viewed as a very dangerous precedent which would, if established, lead to an improper amount of laxity in the conduct of a plaintiff s case: Barker v. Furlong, [1891] 2 Ch. 172; adopted in Sunny Isle Farms Limited, supra. The discretion to admit fresh evidence must be exercised by a trial judge so as to balance the public interest in finality of litigation and of the realities of the case: Bastarache J.A. in Tepper v. Valley Equipment Ltd., [1997] N.B.J. No. 78 (N.B.C.A.).

Page: 7 [15] Upon consideration and application of the guiding principles, the Plaintiffs motion probably satisfies one branch of the two-fold test but does not satisfy the other branch. [16] Regarding its probative value, the evidence qualifies as evidence that might probably affect the outcome of the trial. It cannot be said that it would affect the outcome of the trial. Cpl. Quinn would be an independent witness to what occurred between the two protagonists regarding the pivotal issue in the case. It cannot be determined until he testifies whether what was said or occurred in his presence, or his recollection thereof, is decisive, though it could be. [17] It cannot be said that the evidence of Cpl. Quinn could not have been discovered by reasonable diligence. It was all discoverable before the trial, and during the trial. The Sheriff s involvement as bailee or responsibility otherwise for the vehicles and their contents was always a central question. The Plaintiffs and their counsel were aware before the trial that they had a problem looming with Mr. MacMillan s evidence. At trial, while Cpl. Quinn s role was not noted by the evidence as being prominent on the night in question, witnesses spoke of his presence in the midst of the activity. Even I as trial judge wondered aloud near the end of the trial why the Court had heard from both sides on a matter in which credibility was in question but did not hear evidence from either the tenant s lawyer, Mr. Hennessey or from Cpl. Quinn about their version of whatever arrangements were reached and what events occurred. After Mr. MacMillan testified, the Plaintiffs were aware that rebuttal evidence could be critical. The Plaintiffs made a tactical decision. Understandable as their decision may have been to not call Cpl. Quinn before knowing what he would say, and not to seek an adjournment to subpoena Cpl. Quinn without knowing whether he would have anything to say in support of their case, they could have done either. Following closing of the evidence, both parties made their arguments based on the evidence before the Court at trial. [18] I have also taken into account the Rules of Civil Procedure, Province of Prince Edward Island. They do not add considerations different from principles advised by the authorities. Rule 52.07 directs the order of presentation of evidence and arguments at trial. Rule 1.04(1) directs that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits. There is no question that Cpl. Quinn has relevant information that could be determinative of the main issue; and as well that it is neither expeditious nor the least expensive route, in terms of this case or general precedent, to reopen the trial. [19] It has always been a fundamental consideration that a miscarriage of justice does not occur. Matzelle Estate, supra at paragraph 16 is authority for the proposition that a trial judge s discretion can be exercised to reopen the trial whether or not the evidence could have been discovered by the exercise of reasonable diligence prior to trial. Justice

Page: 8 Chapnik cautions however that this discretion should only be exercised in the clearest of cases, and only to prevent miscarriage of justice. That seems to me to be a fairminded reconciliation of the conflict in the old case law between, on the one hand giving an unfettered discretion to reopen, and on the other hand advising that this discretion not be exercised except immediately at the end of the evidence at trial, and not after the arguments are made. The early cases pointed out that in none of the cases did the trial judge in exercising his discretion allow confirmatory evidence sometime after the close of trial, but only at trial immediately following the close of the main evidence. [20] I need also mention that in my assessment there is nothing in the actions of the Defendants or their counsel which has mislead the Plaintiffs. The Defendants made known to the Plaintiffs their position on the issue and their intention to call George MacMillan as a witness. There is nothing to indicate that the Defendants knew or now know what Cpl. Quinn would say about the matters in issue. [21] The Plaintiffs do not satisfy the test that the evidence could not have been discovered by reasonable diligence. Looking beyond the two-fold test, I am not satisfied that this is a case for exercising my discretion to reopen the trial to receive new evidence. The admonition in the case law is to reserve reopening for very clear cases where the interests of justice is at stake. That is especially so where one branch of the two-fold test is not satisfied. In my view, the circumstances on this motion do not so qualify. There is evidence before the Court from both sides on the question in issue. The evidence of Cpl. Quinn is intended to be confirmatory and to elaborate upon the Plaintiffs evidence already tendered. Credibility is in issue. Beyond that, there is no suggestion of the Court being mislead by fraud or similar action without Cpl. Quinn s evidence being made available. That Cpl. Quinn s evidence is presumptively credible and could affect the result of the case makes this decision difficult. The Plaintiffs can though be taken to have been aware of their problem of proof from the time the Defendants denied their claim, and at the latest shortly before trial. This is not a case for bypassing the general rule and principles in the interests of justice. [22] Regarding costs of the motion, Defendants counsel having advised the Court that they are satisfied that costs of the motion be in the cause, it will be ordered accordingly. December 29, 2003 Justice David H. Jenkins