Appeals aside, sometimes trials have long tails! And in the example below, we see how post-judgment activity can erupt long after things seem calm, but prior to entry of a final order, and how such activity can benefit or depress outcomes for either side.

The trial decision by Mr. Justice Cohen in Sauer v. Scales, 2009 BCSC 1250. It is an extensive judgment (313 paragraphs) arising out of an MVA on November 1, 2004. There were 12 trial days in three intervals between May 12, 2008 and April 22, 2009. Judgment was reserved until September 14, 2009. The Plaintiff was awarded General Damages of $135,000 (injuries included myofascial pain syndrome, eye injuries, dental fractures and TMJ injuries; prosthodontal reconstruction was involved); Special Damages of $85,600 and Future Care Costs of $116,200 (essentially based on a five-year award into the future). A claim for loss of earning opportunity was dismissed (a significant factor was the Plaintiff's pre-accident health and his prior interactions with disability carriers).

There was then a first post-trial application, by the Defendant, regarding divisibility and deduction. See 2009 BCSC 1311, issued September 28, 2009. A settlement had been reached regarding a second MVA and defence counsel sought a deduction of that $62,500 based on Ashcroft v. Dhaliwal, 2008 BCCA 352. The trial judge found some exacerbation occurred but in full consideration of the relationship between the two events he held that the MVA #2 injuries were separate and divisible, double recovery did not apply, and so no deduction was made.

There was then a second post-trial application, by the Defendant, regarding deduction of future Part 7 benefits against the future care costs award: see 2009 BCSC 1705 on December 11, 2009. The trial judge reviewed a number of decisions, primarily from the BCCA. A math error by the judge was corrected (reducing the Care Costs to $110,000), a $20,000 ICBC advance was deducted, and a further $25,000 was taken off under s. 83(5) of the Insurance (Vehicle) Act.

There was then a third post-trial application, by the Plaintiff, based on a change in circumstances since the trial judgment, to adduce fresh evidence regarding a particular cost of future care item, indexed at 2010 BCSC 983 on July 13, 2010. The Plaintiff sought to introduce evidence regarding an alternative treatment. The application by the Plaintiff arose from an adverse reaction to a treatment which had been awarded under the future care costs head. The court allowed new evidence from one physician, but not from another (which could have been lead at trial). The Plaintiff argued that “the circumstance is a supervening event post judgment which threatens to falsify the damage award for this injury and it was not something the Plaintiff could anticipate…” [at para. 8]. The court found the evidence compelling and made a ruling in favour of the application, but also set out a series of negative considerations to be addressed by the parties regarding costs of this application.

Then, there was a fourth post-trial application, by the Plaintiff, to modify the future cost of care award. The Plaintiff made written submissions on June 1, 2011, the Defendant replied on July 5th, and the Plaintiff responded on August 9th. The trial judge issued reasons on September 23, 2011, which may be found at 2011 BCSC 1261. In the result, his Lordship noted that because of an adverse reaction to Botox, the treating doctor is now apprehensive to treat with that drug and he held that there will be changes in the future cost of care award made two years earlier.

So, from the start of trial (May 12, 2008) to what appears to be a final trial ruling (September 23, 2011) is almost 3.5 years. The more significant gap, though, is the eight months after the second and before the third applications.

Why do we not see more series of these long tail applications in more cases? The first two applications do not seem especially out of the ordinary. But the timing and content of the third and fourth are unusual. The court noted in the fresh evidence application that most of the cases cited by the Defendant related primarily to situations where the evidence could have been lead at trial and would not likely have changed the result [at para. 14]. In this case, though, the court was satisfied that a “miscarriage of justice would occur without the introduction of the fresh evidence relating to his allergic reaction to Botox and his need for alternate therapy” [at para. 17].

The trial judgment Order was not entered before these four applications (or the trial judge would have been functus). I am not aware of any Costs applications or other Motions beyond the September 14, 2009 decision (perhaps still to come?). I am not aware of any appeals having been filed. I am also not aware of the extent of other activities and dynamics between the second and third applications.

What opportunities or concerns do these situations raise? It is hard to generalize who might benefit and who might lose from keeping the trial “open” long after the judgment is issued. A post-trial Botox allergy here was not predictable by the parties or the court. In this case, the Plaintiff took advantage of the opportunity. The practice point, for all parties, is to consider on an ongoing basis whether the final Order should be entered even though the matter feels quiescent.