



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Williams 
          (Guardian ad litem of) v. Vancouver (City),







2006 
          BCCA 6



Date: 20060105





Docket: CA033457

Between:

Lisa 
    Williams, Personal Representative of Thomas Evon Stevenson, Deceased, Angelo 
    Williams and Ephriam Williams, Infants, by their Guardian Ad Litem, Lisa Williams, 
    and the said Lisa Williams

Respondents

(
Plaintiffs
)

And

City 
    of Vancouver, Clive Milligan and Darren E. Foster

Appellants

(
Defendants
)












Before:


The 
          Honourable Mr. Justice Smith




(In 
          Chambers)








B. 
          Parkin


Counsel for the Appellant




A.C. 
          Ward


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




7 December 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




5 January 2006





Reasons for Judgment of the Honourable Mr. Justice Smith:

[1]

The applicants, the defendants in the action below, seek leave to appeal 
    from the first two of the following orders made by Madam Justice Boyd in a 
    jury trial of the plaintiffs claims under the
Family Compensation Act
, 
    R.S.B.C. 1996, c. 126:

1.

A mistrial be declared;

2.

The Defendants pay the Plaintiffs all of their costs thrown away incurred 
    as a result of defence counsels misconduct, forthwith after taxation thereof, 
    including:

a)

All of counsels trial preparation;

b)

The application for production of documents;

c)

The case management conference immediately before trial;

d)

The Plaintiffs expenses in travelling to and from Vancouver and their 
    costs of accommodation in Vancouver;

3.

The action be remitted to the trial list; and

4.

The action be referred to Davies J. for continued case management.

[2]

Further, the applicants seek a stay of the order for costs pending 
    hearing of their appeal.

[3]

The action arises out of the shooting death of Thomas Stevenson at 
    the hands of members of the Vancouver Police Department on December 7, 
    2002.  The plaintiffs are Mr. Stevensons surviving common-law spouse 
    and her children, to whom the plaintiffs say Mr. Stevenson stood
in 
    loco parentis
.  The individual defendants are the officers who were involved.  
    The City is joined as a defendant because of its statutory liability under 
    s. 20 of the
Police Act
, R.S.B.C. 1996, c. 367 for 
    the torts of police officers committed in the course of their duties.  The 
    defendants deny liability on the basis that the fatal force used by the officers 
    was justifiable in the circumstances.  Alternatively, it is their position 
    that Mr. Stevenson was in prison for most of the period for which the 
    plaintiffs are claiming damages for losses resulting from his death.

[4]

During the examination for discovery of the adult plaintiff, Lisa Williams, 
    by Ms. Liang, counsel for the defendants, Ms. Williams testified that 
    Mr. Stevenson had resided with her and her children since January 1998 
    and had been incarcerated for only about twelve months of that time.  Ms. Liang 
    suspected the reliability of that testimony, since it did not appear to her 
    to correlate with documents she had received from the Vancouver Police Department 
    relating to periods of incarceration of one Steve Evon, whom she believed 
    to be Mr. Stevenson, between 1977 and 2002.  Accordingly, she investigated 
    the matter and ascertained that a Ms. McLean, Chief of Sentence Management 
    for the Correctional Service of Canada, had records relating to the incarceration 
    of Steve Evon.  On September 19, 2005, Ms. Liang issued a subpoena 
    to Ms. McLean requiring her to produce the records at the trial.

[5]

Ms. McLean prepared a summary of the records of Steve Evons periods 
    of incarceration, which apparently totalled approximately forty-one months 
    during the relevant period of time.  She delivered the summary to Ms. Liang.  
    The trial judge concluded that Ms. McLean delivered it before Ms. Liang 
    issued the subpoena but the only evidence on this point was that of Ms. Liang, 
    who said she received it after she had issued the subpoena.  In any event, 
    on September 23, 2005, after receipt of the summary, Ms. Liang delivered 
    a supplementary list of documents to plaintiffs counsel, Mr. Ward, in 
    which she identified the summary in Part III of the list, entitled Documents 
    for which privilege from production is claimed as either Documents labelled 
    F or Documents labelled G.  She took the position that the summary 
    was privileged as part of her litigation brief.

[6]

On Monday and Tuesday, September 26 and 27, 2005, Ms. Mclean 
    delivered copies of the subpoenaed records to Ms. Liang.  Ms. Liang 
    reviewed them and discussed them with Ms. Mclean.  She did not disclose 
    to Mr. Ward that she had the copies, nor did she deliver a further supplementary 
    document list at that time.

[7]

The trial began on Monday, October 3, 2005.  Jury selection commenced 
    but was not completed and the balance of the day was devoted to submissions 
    concerning the admissibility of various documents.  The documents delivered 
    by Ms. McLean to Ms. Liang were not mentioned.

[8]

The first witness called was the plaintiff Angelo Williams, Lisa Williams 
    seventeen-year-old son, who took the stand in the afternoon of Wednesday, 
    October 5, 2005.  He testified in his examination in chief that Mr. Stevenson 
    moved in with the Williams family in 1998 and resided with them as a husband 
    and father in their home in Toronto until he left to go to Vancouver shortly 
    before he met his death.

[9]

In cross-examination, Ms. Liang asked him if there was a period 
    during that time that Mr. Stevenson did not live with the family and 
    he replied that Mr. Stevenson had been in jail for approximately ten 
    months in 2000.  He said that was the only time Mr. Stevenson went to 
    jail.  Subsequently in her cross-examination, Ms. Liang put to him that, 
    contrary to his testimony to that point, Mr. Stevenson had been incarcerated 
    for a total of forty-one months during the period December 1997 to March 2002, 
    save for periods of parole.  The witness denied that was so, whereupon Ms. Liang 
    put specific dates to him during which she suggested Mr. Stevenson had 
    been incarcerated.  Ultimately, the witness said he could not remember precisely 
    when Mr. Stevenson had been incarcerated.  The trial judge said this 
    cross-examination substantially undermined the strength of his evidence and 
    his credibility as a witness.

[10]

That evening, Ms. Liang faxed copies of the summary and the Evon 
    records to Mr. Ward.  When court opened the following morning, Mr. Ward 
    advised the trial judge that he had received the documents and that he sought 
    a mistrial on the ground that they had not been previously disclosed.

[11]

During submissions on the mistrial application, Ms. Liang advised 
    the trial judge that she had earlier received copies from the Vancouver Police 
    Department of the documents delivered to her by Ms. McLean, and that 
    she had produced these copies to the plaintiffs long before the trial.  She 
    said her purpose in subpoenaing the records from Ms. McLean was to prove 
    them as business records if she should decide it was necessary to do so.  
    She said she first had notice from Mr. Ward on the second day of trial 
    that Angelo Williams would testify and that, since she had not examined him 
    for discovery, she did not know what he might say in his testimony.  She said 
    that she decided, after hearing Mr. Williams testify and after considering 
    that evening his testimony about Mr. Stevensons periods of incarceration, 
    that it would be necessary to call Ms. McLean to produce the records 
    at the trial in order to prove the actual dates of incarceration.  She said 
    she did not disclose Ms. McLeans name to Mr. Ward prior to trial 
    because she had not yet decided to call her and because she did not want to 
    give the plaintiffs an opportunity to tailor their evidence.

[12]

After hearing counsels submissions, the trial judge granted Mr. Wards 
    application and made the impugned orders with reasons to follow.

[13]

The trial judge began her reasons by noting that the mistrial declaration 
    arose from defence counsels use of certain undisclosed documents to conduct 
    the cross-examination of the infant plaintiff, Angelo Williams.  She concluded 
    that Ms. Liang had acted improperly in failing, upon receipt of the summary 
    from Ms. McLean, to immediately deliver a supplementary document list 
    describing the summary in such a fashion that plaintiffs counsel would be 
    able to identify the nature of the document.  She found, as well, that Ms. Liang 
    ought to have revealed Ms. McLeans name at the outset of the trial and 
    included her in the defendants witness list delivered to Mr. Ward pursuant 
    to a practice direction published by the Chief Justice on July 10, 2002, 
    which provides that all parties must exchange a list of witnessesprior to 
    or at the scheduled Pre-Trial Conference unless otherwise ordered.

[14]

The trial judge characterized the nondisclosure of the summary and 
    the copies of the Evon records as subterfuge.  She said,

[35]      
    I am satisfied that Ms. Liang realized from the outset, on receipt of 
    Ms. McLeans summary, that she had access to the key evidence required 
    to challenge, if not destroy, the plaintiffs position on damages.  Assuming 
    the defence could prove that the deceased Stevenson and Steven Evon were one 
    and the same person, the documents effectively destroyed the evidentiary foundation 
    of any claim that Stevenson had been a breadwinner or a person in
loco 
    parentis
to the infant children during the majority of the relevant four 
    year period, prior to his death in December 2002.  The documents are not corollary 
    documents.  Rather the documents are highly relevant documents which go to 
    the heart of the defence position on damages.

[15]

In her view, the plaintiffs were prejudiced by the misconduct of 
    Ms. Liang and the prejudice could not be redressed by ruling the documents 
    inadmissible.  She continued,

[50]      
    Even if the documents are ruled inadmissible, I have no hesitation in saying 
    that there is no jury charge which could erase the effect of this cross-examination.  
    The cross-examination left the jury with the impression defence counsel had 
    access to documents which clearly proved the infant plaintiff had lied and 
    had misled the jury.  Whatever, the Courts instruction, I remain convinced 
    that this impression cannot be erased.  The cross-examination at least achieved 
    a near retraction of any clear evidence from the infant plaintiff of whatever 
    period he insisted he had enjoyed with Mr. Stevenson, as a near father 
    and provider in the Williams household.  No jury charge could remedy that 
    resigned admission.

[16]

The applicants allege a number of grounds of error by the trial judge.

[17]

First, the applicants wish to argue that the trial judge erred in concluding 
    that Ms. Liang used the documents in the cross-examination of Angelo 
    Williams.  The trial judge apparently considered this to be a transgression 
    of Rule 26(14) of the
Rules of Court
.  She observed that, 
    While no document was ever put to the witness, it was clear that counsel 
    was referring to notes or documents. as she cross-examined on the specific 
    dates of incarceration.  At no time during the cross-examination did Ms. Liang 
    put any document in the hands of the witness, nor did she mention any document 
    in her questions.  Further, Mr. Ward did not object to the cross-examination, 
    nor did he call upon Ms. Liang to tender the notes or documents to which 
    she was apparently referring.

[18]

The applicants will submit further that Ms. Liang simply put contradictory 
    factual assertions to the witness, as she was obliged to do by the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.) if she wished to prove 
    them later in the case for the defence.  They propose to argue that the trial 
    judge should not have intervened until the evidence was closed, and then only 
    if they failed in their case to prove the assertions put to the witness during 
    cross-examination.

[19]

The applicants will submit, as well, that the impeachment of Angelo 
    Williams through cross-examination is not prejudice that would justify a 
    mistrial declaration.

[20]

The applicants also submit that the proposed appeal will raise important 
    questions as to the proper description of privileged documents in a document 
    list in these particular circumstances; as to whether copies of records delivered 
    to counsel in the circumstances presented here are privileged or should be 
    disclosed; and as to whether defence counsel must disclose before trial, in 
    accordance with the practice direction, the name of a person who may or may 
    not be called to produce documents depending upon counsels assessment of 
    the evidence given in the plaintiffs case.  A further point arises out of 
    the last question, that is, whether a person subpoenaed only to produce documents 
    at trial is a testimonial witness.

[21]

As well, the applicants question the propriety of the trial judge declaring 
    a mistrial for the failure of counsel to disclose copies of relevant documents 
    in her possession before the documents were offered in evidence.  It is their 
    position that it was open to them, when the time came to lead evidence in 
    defence, to attempt to prove Mr. Stevensons periods of incarceration 
    by means other than the records produced by Ms. McLean if the records 
    were not admissible.

[22]

Further, they will submit that the trial judge erred in awarding costs 
    of pre-trial proceedings in which the court had already exhausted its jurisdiction 
    to award costs and, in effect, overruling previous orders of the court.

[23]

Although the mistrial declaration was, technically, a ruling made during 
    the course of the trial and this Court will generally not entertain appeals 
    from such rulings, this is an exceptional case: the ruling will not be subsumed 
    in the final order at the new trial and there will be no avenue available 
    to appeal it if leave should be refused.

[24]

It is true, as counsel for the respondents submits, that no matter 
    what order this Court might make the trial cannot be resurrected and a new 
    trial will have to be held.  Nevertheless, there is practical utility to the 
    proposed appeal.  The applicants have been ordered to pay costs thrown away 
    forthwith.  This order could not be revisited at the new trial.  The costs 
    awarded are substantial.  Counsel advise that the costs have been assessed 
    and paid into Mr. Wards trust account pursuant to an order of the Supreme 
    Court that they remain in trust pending disposition of this application.  
    Thus, if the proposed appeal should succeed, there is an obvious practical 
    benefit to the applicants and a corresponding detriment to the respondents.  
    The appeal is therefore significant to the parties.

[25]

In my view, the applicants have raised some important questions of 
    law and practice that warrant the attention of this Court and they have demonstrated 
    an arguable case of sufficient merit to justify granting leave.  Moreover, 
    the proposed appeal will not hinder the progress of the action, since the 
    new trial can proceed without awaiting the result of the appeal.  The respondents 
    will therefore not be prejudiced in the conduct of the action if leave to 
    appeal should be granted.

[26]

Accordingly, I grant 
    leave to appeal and I order that the Supreme Courts order that the costs 
    be held in trust pending disposition of this application be extended until 
    disposition of the appeal.

The Honourable 
    Mr. Justice Smith


