Smith et al. v. Aqua Timber et al., Ontario Superior Court of Justice, Court File No. CV-11-621, Brantford, Ont., Jan. 4, 2014
RE: the Rule 57.03 of the Rules of Civil Procedure and the consequence of not undertaking to call a witness at trial
RE: whether defendant entitled to a full examination of its own representative after the plaintiff had called that representative as a witness at trial
In the trial of this action, we successfully opposed a defendant’s motion to call evidence from a witness on ‘re-examination’ at trial, after the defendant’s lawyer had previously refused the plaintiff’s request that he undertake to call that individual as a witness of his own, for the defence. The witness was the person “responsible for the production side” of the defendant timber company in a dispute with the plaintiff over whether or not the defendant company was owed any money. That witness was accordingly necessary for the plaintiff’s case and the plaintiff had served a Notice under Rule 57.03 of the Rules of Civil Procedure, requiring that he to attend to give evidence.
As confirmed by the Court, defendant’s counsel could have, right up until he was called to the stand by the plaintiff, undertaken to call that individual as his witness (so as to put that witness's evidence off until he was presented as a witness for the defence) but failed to do so. After the plaintiff examined the witness for more than 3 days, the defendants’ lawyer sought to examine him without restriction, as if he were being examined as the defendant’s witness, at first instance. The plaintiff’s objection was sustained.
The decision is important as regards trial tactics as there were no prior reported decisions on the scope of Rule 57.03. The Court held that when called by an adverse party under that Rule, a witness could not be re-examined on previous testimony or to raise new issues not opened up in a witness’s original testimony