52.10 Where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party’s case,
(a) the judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs; or
(b) where the case is being tried by a jury, the judge may direct the jury to find a verdict as if the fact or document had been proved, and the verdict shall take effect on proof of the fact or document afterwards as directed, and, if it is not so proved, judgment shall be granted to the opposite party, unless the judge directs otherwise.
The action proceeded through approximately four weeks of evidence and the continuation of the trial was adjourned from Jan. 28 to June 7, 2010. The plaintiff had completed her case and during the course of the cross-examination of a witness on behalf of the defendant municipality, plaintiff’s counsel, in questioning this witness, suggested to her the plaintiff had shown her a photograph of the front of the co-defendant, Gerard Caverson’s home in its pre-renovation condition depicting downspouts on the front of the home.
Following objections by counsel for the defendants, plaintiff’s counsel conceded that she never had in her possession a photograph of the front of Caverson’s home in its pre-renovation condition as depicted in the photograph. The trial judge, Justice Peter A. Daley, ruled that since the plaintiff never had a photograph, as suggested by counsel in his questions to the witness, her counsel was prohibited from posing any questions to witnesses suggesting that such a photograph existed.
After the trial resumed on June 7, it appears that serendipity or, perhaps, kismet intervened. Diana Kay’s counsel advised the court she was now in possession of a photograph of the front of the Caverson’s home. She sought leave to reopen her case to introduce this photograph as evidence, although no written motion or evidence was served, nor was any affidavit evidence proffered on how and when the photograph came into her possession.
Daley then directed that a voir dire be conducted, (presumably having a witness recalled for further examination under Rule 53.01(3) “Trial Judge to Exercise Control”) during which time “. . . the plaintiff gave somewhat surprising testimony that she found the photograph in her mailbox at her home on May 31, 2010. She could not offer any evidence as to who took the photograph nor when it was taken. She testified that she had an idea as to who may have placed the photograph [in] her mailbox, but she declined to identify that person.”
Daley went on to note: “While the photograph produced depicts a home somewhat similar to the Caverson’s, on examining other pre-renovation photographs of the Caverson’s home that have been introduced into evidence, there were several features of the home in the new photograph which were different, including the type of windows and doors. As well, this photograph depicted the presence of hand rails at the front door which were not present in the other pre-renovation photographs of the Caverson home which have been admitted in evidence.”
The judge concluded the photo offered up as new evidence did not “clearly show the presence of downspouts on the front of the home.”
Kay asserted that the failure to tender the photograph in the plaintiff’s case was through “other cause,” namely the evidence was simply not available.
As Daley aptly observed, “a trial judge must exercise the discretion to reopen the trial sparingly and with the greatest care so that fraud and abuse of the court’s process do not result” as per 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. and R. v. Palmer.
The trial judge cited the two fundamental requirements for reopening a case established in 1970’s Scott v. Cook, namely: “. . . the applicant must show that the evidence he or she seeks to adduce is such that, if it had been presented at trial, it would probably have changed the result. It is not sufficient if the evidence is merely corroborative of the evidence given on behalf of the applicant at trial. This requirement does not apply in cases of fraud, conspiracy or surprise. These issues are not present in this case.
“The second requirement established in Scott was that the applicant was required to demonstrate that the evidence could not with reasonable diligence have been obtained before trial.
“As this motion by the plaintiff is made prior to the conclusion of the trial, additional considerations should be examined.”
In Daley’s view, Kay failed to offer “any adequate evidence to demonstrate that she exercised reasonable diligence in investigating the availability of a photograph of the Caverson’s home. She conceded that she had not canvassed her neighbours to determine if such a photograph existed and was available prior to trial.”
The trial judge also had evidentiary concerns over the relevance, reliability, and probative value of the photograph: “While the photograph may be a photograph of the Caverson’s home taken some years ago, and prior to the plaintiff moving into her home, it is a little assistance to the court in determining the condition of the Caverson’s home prior to the renovation work, as other photographic evidence has been admitted which clearly depicts the Caverson’s home with different features from those shown in this photograph.
“Further,” noted Daley “as to the relevance of the photograph if accepted in evidence, I cannot conclude that it would bear upon a decisive issue in this trial. As I understand the intended use of the photograph, it is being proffered to simply corroborate the evidence of the plaintiff as to the pre-renovation condition of the Caverson’s home. As noted in Scott, this is not a proper basis upon which the courts should exercise its discretion to allow the plaintiff to reopen her case.”
The moral of the story: A picture is not always worth a thousand words.
Antonin I. Pribetic is litigation counsel at Steinberg Morton Hope & Israel LLP, and a sessional lecturer at UTM-Rotman School of Management’s diploma in investigative and forensic accounting program and author of the Trial Warrior Blog.