Manning v. Dhalla

2019 BCSC 1067 Manning v. Dhalla

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Manning v. Dhalla, 2019 BCSC 1067 Date: 20190702 Docket: S133517 Registry: Vancouver Between: Andreas Eric Manning, A.E. Manning M.D. Inc., and 0712199 B.C. Ltd. Plaintiffs And Naguib Dhalla Defendant Before: The Honourable Mr. Justice Branch Reasons for Judgment Counsel for the Plaintiffs: K. McEwan, Q.C. A. Beddoes Counsel for the Defendant: T. Hakemi N. Muirhead Counsel for the Plaintiffs in Action S121627: R. Mogerman P. Bennett Place and Dates of Hearing: Vancouver, B.C. April 29-30, 2019 Place and Date of Judgment: Vancouver, B.C. July 2, 2019 Table of Contents I. INTRODUCTION. 3 II. FACTS. 4 III. ISSUES. 6 IV. LAW & ANALYSIS. 6 A. Alleged Breach of Implied Undertaking Rule. 6 B. Is a Mistrial the Appropriate Remedy in this Case?. 8 i. The Law on Ordering a Mistrial 8 ii. Should the Plaintiffs Have Brought a New Evidence Motion Rather Than a Mistrial Application?. 11 iii. Applying the Mistrial Test 13 B. Should the Court Seize Itself of Any New Trial?. 19 V. CONCLUSION. 21 VI. COSTS. 21 I. INTRODUCTION [1] The plaintiffs sustained several million dollars of losses in a Ponzi scheme. They pursued their former bookkeeper for these losses. Specifically, the plaintiffs alleged that the defendant bookkeeper failed to disclose that he was receiving commissions from the fraudster for placing the plaintiffs' funds into the

scheme. [2] I dismissed the plaintiffs' claim on December 5, 2018, primarily on the basis that the plaintiffs had failed to establish on a balance of probabilities that the defendant did in fact receive such commissions. My reasons for judgment are reported at 2018 BCSC 2148 (the "Reasons"). [3] The order flowing from the Reasons has not yet been entered. [4] At trial, the defendant denied that he received any commissions and no documents were available that contradicted his testimony. The only evidence that he received any commissions came from the fraudster Rashida Samji herself. I preferred the evidence of the defendant over that of a convicted fraudster. [5] The plaintiffs now seek a mistrial in light of a post-trial discovery of new documents, which suggest that: a) the defendant did in fact receive commissions; b) the defendant kept track of those commissions in documents that were never produced to the plaintiffs; and c) the defendant received commissions far in excess of those that even the plaintiffs projected at trial. [6] The defendant says that a mistrial is not justified. [7] First, he argues that the application fails because it is based on documents obtained in violation of an implied undertaking. [8] Alternatively, he argues that the motion should fail because the plaintiffs should have brought an application for fresh evidence, and the test for fresh evidence

is not met because: i. the plaintiffs could have obtained the new documents before trial if they had shown reasonable diligence; and ii. the new documents would not have changed the outcome of the trial. [9] For the reasons expressed below, I find that a mistrial is the only appropriate remedy in the circumstances. Based on the evidence before me, the plaintiffs appear to have found a "smoking gun". The only way to avoid a miscarriage of justice is through a new trial with the evidentiary gun in evidence. II. FACTS [10] On or about December 19, 2018, two weeks after the issuance of the Reasons, plaintiffs' counsel were provided certain documents by counsel for the plaintiffs in the class action Jer v. Samji, Vancouver Registry S121627 (the "Class Action"). These documents were not produced by the defendant in this litigation. The documents include a spreadsheet (the "Spreadsheet") and a fax letter (the "Fax") containing certain calculations and accounting of amounts payable to the defendant from Ms. Samji. The new documents have British Columbia Securities Commission ("BCSC") numerical codes on them. [11] The defendant concedes that, for the purposes of this motion only, these documents probably originated with the defendant. Notably, the defendant did not file an affidavit in response to the motion. He chose to file only an affidavit and report from Mr. Aslam Nathoo, a

computer technician retained by the defendant's counsel to conduct a search of one of the computers the defendant has had since 2011, and a backup used by the defendant since 2014. Mr. Nathoo was unable to find copies of the Spreadsheet or the Fax in either location. [12] On their face, these documents seem to squarely contradict the defendant's trial testimony that he did not receive commissions for placing the plaintiffs' funds into the scheme. There are notations and calculations of credits flowing to the defendant which conform to dates of investments made by the plaintiffs. The plaintiffs' names are also noted on certain entries. Furthermore, there appear to be substantial annual bonuses paid to the defendant, as well as the percentage commissions. The amounts flowing to the defendant for the limited period covered by the new documents are in excess of $500,000, almost an order of magnitude greater than the $60,000 previously deduced by the plaintiffs. [13] The earliest entry on the available pages of the Spreadsheet is December 15, 2009, more than 14 months after the plaintiffs began investing, raising the possibility that further earlier commissions may also have been earned. There are also notations suggesting that the defendant made investments in conjunction with Ms. Samji herself. [14] Because the Spreadsheet seemed to be missing pages, the plaintiffs engaged in

further investigation. On or about December 21, 2018, the plaintiffs obtained 9,000 documents from the BCSC's files (the "New BCSC Documents"). The plaintiffs did not find further pages of the Spreadsheet. However, the plaintiffs did discover other relevant documents not produced by the defendant, including copies of cheques from the fraudster to the defendant, several of which contain notations in the memo field that also suggest the defendant was receiving commissions on the plaintiffs' investments. [15] The action was first commenced by different counsel. In September 2014, the plaintiffs retained current counsel. Within the file transferred by previous counsel were approximately 375 documents bearing a notation at the top indicating that the documents originated with the BCSC. Other than these documents, current counsel did not obtain or review any further documents from the BCSC before trial. [16] The plaintiffs have launched an appeal which, unsurprisingly, includes an application for the introduction of fresh evidence. However, Mr. Justice Fitch in chambers granted an application to stay the appeal until 14 days after the release of this judgment. III. ISSUES [17] I will address the issues as follows: (1) Has there been a breach of the implied undertaking of confidentiality? If so, should the court exercise its discretion to relieve against the undertaking? (2) Is a

mistrial the appropriate remedy? (3) Should the Court seize itself of the new trial? IV. LAW & ANALYSIS A. Alleged Breach of Implied Undertaking Rule [18] Counsel in the Class Action appeared and made submissions, given that any alleged breach of the undertaking would rest with them. They argue that there was no breach, as they were entitled to share the BCSC documents with the plaintiffs by the terms of the applicable order made within the Class Action: 3. To the extent that documents produced by the order herein contained documents or information that is not relevant to litigation relating to the Samji Investment Scheme, the recipient of the documents shall maintain the confidentiality and privacy rights of non-investor documents and shall refrain from use or disclosure of the documents whatsoever, save and except with further order of the court applicable. [Emphasis added.] [19] Counsel in the Class Action note that at the time this order was made there was an array of litigation ongoing in relation to the scheme, much of which was being case managed by Madam Justice Gerow, who issued the above order. They argue that the order contemplated the sharing of information within that array of litigation through its use of the term "litigation relating to the Samji Investment Scheme", of which the present litigation would qualify. [20] I accept the logic of this reasoning. I do not

find any breach of the implied undertaking that would prevent the advancement of this motion. [21] Furthermore, if there was any doubt in this respect, I would have issued an order relieving the parties from the implied undertaking retroactively. [22] The law relating to the court's discretion to relieve from an implied undertaking was set out by the Supreme Court of Canada in Juman v. Doucette, 2008 SCC 8. To be relieved from the implied undertaking, an applicant must "demonstrate to the court on a balance of probabilities the existence of a public interest of greater weight than the values the implied undertaking is designed to protect, namely privacy and the efficient conduct of civil litigation": Juman at para.

32. An implied undertaking should only be set aside in exceptional circumstances: paras. 32, 38. [23] I find the circumstances in this case are sufficiently exceptional to warrant relief from the implied undertaking. Any burden has been met. In reaching this conclusion, I rely primarily on the fact that the relevant documents should have been listed and disclosed by the defendant in this litigation as required by Rule 7-1(1)(a) of the Supreme Court Civil Rules. Pursuant to Form 22, the list must include documents that "are or have been" in the party's possession or control [emphasis added]. It is no answer to suggest that the documents were no longer in the defendant's possession. [24] It does not lie in the defendant's mouth to argue that the documents should not have been obtained by indirect means when he failed to produce the documents by the governing direct means. As Mr. Justice Harris stated in Cochrane v. Heir, 2011 BCSC 477 at para. 5, the defendant "cannot shield [him]self from [his] obligation to list and produce relevant documents by invoking the implied undertaking": see also Schober v. Tyson Creek Hydro Corporation, 2014 BCCA 12 at para. 25; XY, LLC v. Canadian Topsires Selection Inc., 2015 BCSC 1617 at paras. 26, 62. [25] The fact that there are similar issues raised in the Class Action and the present proceeding is also relevant: XY, LLC at paras. 27-30. [26] The public's interest in the just determination of this case on the merits and preventing any fraud upon the court outweighs any privacy interest the defendant may have in the subject document. To prevent the use of the document would be contrary to the court's truth-seeking objective: XY, LLC at para. 59. [27] I note that Juman provided for relief after an application: para.

30. In this case, counsel in the Class Action made no application before providing the documents to the plaintiffs' counsel. Hence there is a question as to whether such relief should be provided retroactively. Mr. Justice Voith reviewed the case law relating to retroactive relief in relation to an implied undertaking in Branconnier (Re), 2017 BCSC 1896 at paras. 43-54. I would have found retroactive relief appropriate in this case. I accept that counsel in the Class Action believed in good faith that the implied undertaking rule did not apply to the documents by reason of the above order of Gerow J. Thus, there was no deliberate breach of an undertaking: Branconnier at paras. 51-52, Maier Investments Ltd. v. Chen, 2016 BCSC 1071 at para. 21. [28] I draw a parallel to Chonn v. DCFS Canada Corp. dba Mercedez-Benz Credit Canada, 2009 BCSC 1474. In that case, the plaintiff conceded that she was required to produce the subject documents in accordance with her disclosure obligations but still sought a remedy against the defendants for obtaining them without leave of the court: paras. 54, 57. Mr. Justice Voith held at para. 62 that while the defendant should have made an application to court before moving to obtain the documents on his own, "the plaintiff [had] not been prejudiced by the defendants' conduct and no specific remedy [was] required to address the conduct." The same is

true in this case. Any prejudice to the defendant is caused by his own failure to comply with his obligations to list the documents prior to the trial. B. Is a Mistrial the Appropriate Remedy in this Case? i. The Law on Ordering a Mistrial [29] Where a final order has been pronounced but not entered, a judge has the discretion to re-open the hearing to hear new evidence, or otherwise reconsider the original judgment, including by declaring a mistrial: Spiring v. Young, 2005 MBQB 54 at para. 27; Clayton v. British American Securities Ltd, [1934] 3 W.W.R. 257 (B.C.C.A.); Hodgkinson v. Hodgkinson, 2006 BCCA 158 at paras. 36-37. [30] Judges have broad and inherent common law powers to declare mistrials in necessary circumstances: van Ooyen v. Carruthers, 2018 SKQB 73 at paras. 8-9; R. v. Burke, 2002 SCC 55 at para. 74. [31] In deciding whether to order a mistrial, the court must consider whether the irregularity is of sufficient scope or degree to prevent the prejudiced party from presenting his or her case fully, or from securing a fair adjudication on the merits: Forsythe v. Tone, 2018 ONSC 3598 at para. 23; McDermott v. McDermott, 2013 BCSC 534 at para. 239. [32] The court should consider whether the problematic event relates to a central or a peripheral issue: R. v. Charles, 2015 SKQB 381 at para.

33. The entirety of the surrounding circumstances must be examined: van Ooyen at para.

13. The court must determine whether there is a real danger of prejudice to a party, or of a miscarriage of justice occurring: van Ooyen at paras. 9, 11; Burke at para.

74. A strong case for a mistrial must be presented: McDermott at para. 240. [33] A declaration of a mistrial is a last resort, and will occur only where the court concludes that no other curative measure will suffice: van Ooyen at paras. 8-9; Burke at para.

76. The cost and delay associated with having a new trial is a factor to consider: McDermott at para.

240. In Caswell v. Toronto R.W. Co. (1911), 24 O.L.R. 339 (C.A.) at pp. 350-1, the court stated: A new trial is a hardship under any circumstances; and when granted upon insufficient grounds is a very grave injustice; to take away from any one that which has been fairly won, and to subject him to the delay and cost, and the mental and physical strain, of another trial, as well as to the uncertainty of its outcome, is something which fairly may be thought intolerable. New trials are, of course, occasionally necessary in order that justice may be done between the parties, but they are contrary to the public interests, and may fairly be described as necessary evils, when necessary. [34] I find the decision in Spiring particularly helpful to my analysis below, given its obvious parallels to the present situation. In Spiring, the plaintiffs sought to recover on an alleged loan to the defendants. The main issue in the case was whether or not the plaintiffs' loan had been converted to equity in the defendants' project. At trial, a central document was an agreement that prohibited any co-owner from transferring an equity interest in the project, which would have prevented any co-owners from granting an equity interest to the plaintiff lenders. [35] Two months after the completion of the trial, the defendants made a motion to reopen the case on the basis of new evidence. Through

surreptitious means that the court did not endorse, one of the defendants posed as an agent of a law firm seeking files from the plaintiffs' law firm. The scheme worked, and the defendants obtained a file from plaintiffs' counsel containing a copy of an amendment to the agreement permitting co-owners to dispose of up to a 49% equity interest. This document would obviously assist the defendants by showing it was at least possible for the loan to have been converted to equity. Further, a second document indicated when one of the plaintiffs' employees became aware of this agreement. Neither of these documents were previously produced by the plaintiffs. [36] The court ordered a mistrial. The court found that regardless of who was at fault for the fact that the amendment to the co-owners' agreement was not in evidence at trial, the case could not fairly be decided in the absence of this key document. The court also considered that a witness whose evidence was now potentially not credible would have to be recalled to explain the discrepancy, and that "since the document and his explanation may call into question his recollection of other events, it may be that much of his earlier testimony will have to be re-examined": para. 39. [37] The trial judge noted that he had already commenced writing reasons based on his impressions of the evidence, and that the case "turns largely on the credibility of the two witnesses who testified and the new evidence distorts the impressions that I have had throughout the case": para.

40. He commented further that his review of the original, unamended co-owners' agreement caused him "to have a certain impression of the case which may call into question the manner in which I ruled on evidentiary issues during the trial": para.

40. For these and other reasons, the trial judge concluded that no remedy short of a mistrial could resolve the defect of the previously missing evidence, and that "it would be more just [than re-opening the trial] to have this matter begin anew so that the case can be pursued in a streamlined way, with all of the evidence to be reviewed by the judge in proper chronology": para. 42. ii. Should the Plaintiffs Have Brought a New Evidence Motion Rather Than a Mistrial Application? [38] I find that there is no basis to suggest that the plaintiffs must bring a new evidence motion, rather than a mistrial motion. A mistrial motion is always available in proper circumstances. This is not to say that the relevant considerations for the two motions do not overlap. Nor is it to say that the mistrial remedy can be granted if some lesser remedy, such as reopening a trial to allow the use of fresh evidence, will suffice. But there is no procedural bar against the pursuit of one motion before, or instead of, the other. [39] The defendant argued, relying on Spiring, that it is necessary for a party seeking a mistrial based on the non-disclosure of documents to meet the test for the admission of fresh evidence before the court can entertain a mistrial application. Specifically, they argue that it is essential that the plaintiffs be able to establish that the new evidence underpinning the motion

could not have been discovered based on reasonable diligence. I do not agree with this approach. [40] First, while it is true that the Spiring court first considered the fresh evidence test, that was because the remedy sought by the defendants in that case was a reopening of the trial rather than a mistrial: paras.1, 13. [41] Second, the test for a mistrial is somewhat broader in focus than the fresh evidence test established in Palmer v. The Queen, [1980] 1 S.C.R. 759 (the "Palmer test"). The Palmer test was summarized by the B.C. Court of Appeal in Jiang v. Shi, 2017 BCCA 232 as follows: [5] The test to be applied for the admission of fresh evidence is the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212. Normally, the court will not allow a party to adduce fresh evidence if, by due diligence, the evidence could have been adduced before the chambers judge. Further, the evidence that is proposed to be adduced must bear upon a potentially decisive issue in the case, and it must be credible. Finally, the fresh evidence, when considered along with the evidence that was adduced in the court below, must be of such significance that it could reasonably be expected to have affected the result if it had been adduced. [42] One can see that the Palmer test relies on a more fixed set of factors than the test for a mistrial, which focuses more on the broader question

of avoiding a miscarriage of justice. [43] However, even if satisfying the fresh evidence test were a precondition to granting a mistrial, the defendants have overstated the determinative nature of the due diligence aspect of the Palmer test. While it is certainly a key element of the test, the due diligence element remains subject to the overriding need to maintain the integrity of the trial process itself. In J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308, the court stated: [194] Before leaving this point, I would note that the fresh evidence in this case has a significance that goes beyond impugning findings of fact that were material to the order made below─the evidence goes to the integrity of the trial process itself. Where the fresh evidence is said to impugn the integrity of the trial process, both the procedure to be employed and the Palmer criteria require modification: R. v. Duguay; R. c. Taillefer, [2003] 3 S.C.R. 307; R. v. Hamzehali, 2017 BCCA 290 at paras. 34−39. Fresh evidence of this kind is admitted to permit evaluation of whether a miscarriage of justice occurred. [195] Where, as here, the fresh evidence establishes that a fraud was perpetrated on the court in relation to a material issue at trial, close attention must be paid on appellate review to the broader interests of justice, including not only preserving the fairness of the

trial, in substance and appearance, but also maintaining the integrity of the proceedings and public confidence in the administration of justice: R. v. Davey, 2012 SCC 75 at paras. 50−51. Fraud is an act that is capable of vitiating the most solemn proceedings of our courts of justice: R. v. Stoltz, [1993] B.C.J. No. 891 at para. 26 (C.A.). In my view, the admission of Ms. Reeves' evidence compromised the integrity of the proceedings below and has been shown to have occasioned a miscarriage of justice. [196] In the result, applying a modified Palmer test in this case leads to the same result. On both footings, admission of the fresh evidence requires an order for a new trial. See also R. v. Wolkins, 2005 NSCA 2 at paras. 60-64, 89, and R. v. Hamzehali, 2017 BCCA 290 at paras. 34-36, 38. [44] On the basis of the record before me, the new evidence suggests that the defendant perpetrated a fraud on the court in his testimony. Hence the due diligence aspect of the fresh evidence test would yield to the importance of ensuring that there has been no miscarriage of justice. Any failure on the part of the plaintiffs to exercise due diligence would not be determinative. That said, I still consider the plaintiffs' level of diligence below as part of the broader mistrial test. iii. Applying the Mistrial Test [45] The Spreadsheet, the Fax and the New BCSC Documents are highly probative

evidence concerning the key issues decided by the court in its Reasons: a) The documents undermine the key finding of fact at trial - that the defendant did not receive commissions on the plaintiffs' investments: Reasons at paras. 45-63; b) The failure to list these documents may well constitute evidence that the defendant was actively concealing the extent of his involvement, as may the new evidence that the defendant shared investments with Ms. Samji: Reasons at paras. 65-70; c) The support previously provided to the defendant's credibility as a result of the fact that he and his family were also investors who had lost money in the scheme may be undermined by the actual level of financial recovery received directly from Ms. Samji: Reasons at para. 59; d) The amount of the commissions and bonuses now appears to be many multiples of what the plaintiffs alleged at trial, making it easier for them to establish that, if the plaintiffs had known of such high levels of compensation, it would have caused them pause: Reasons at paras. 71-82. Indeed, it appears that the plaintiffs will now be in a position to argue that the defendant was earning more from the fraudster than from the plaintiffs, which may have caused the plaintiffs to actively question the defendant's loyalties. [46] In these circumstances, an objective observer would conclude that a trial in which the plaintiffs were

deprived of this information generated by the defendant would be unfair. The outcome of the trial could clearly have changed as a result of the evidence contained in the new documents. There is a real danger of prejudice to the plaintiffs, or of a miscarriage of justice occurring, given that there is now compelling evidence suggesting that the defendant simply did not tell the truth. [47] The approach adopted in Spiring is supportive of this conclusion. Indeed, this case is arguably more compelling. While the trial judge in Spiring declined to ascribe fault to any party for the fact that key evidence was missing at trial, in the present case it is more clearly the defendant who failed to list the documents. It is the defendant who, based on the evidence before me, did not tell the truth at trial. These factors magnify the potential miscarriage of justice that would be occasioned by allowing the Reasons to stand. [48] As noted above, I have considered the plaintiffs' role in failing to obtain these documents earlier. It was clearly possible for the plaintiffs to have discovered the documents in advance of the trial, either from the Class Action counsel or from the BCSC. While this factor weighs against the granting of the mistrial, it is mitigated by the following: a) Current plaintiffs' counsel obtained a physical file that included BCSC documentation. It was not unreasonable

to presume that prior counsel had considered the need to review and obtain relevant BCSC documentation, and had in fact done so. b) The primary obligation to list documents created by the defendant rests with the defendant. Our system of document production relies heavily on the party in possession, or formerly in possession, to list relevant documents: Boxer v. Reesor (1983), 43 B.C.L.R. 352 (S.C.) at para. 20; Freeman v. Freeman, 2008 BCSC 857 at paras. 25-27. The opposing party should be able to place some level of trust in the fact that the other party and their counsel have lived up to their document production obligations. As the Court of Appeal stated in Stone v. Ellerman, 2009 BCCA 294 at para. 42, leave to appeal ref'd [2009] S.C.C.A. No. 364, failure to comply with disclosure rules is antithetical to the objective of securing the just, speedy and inexpensive determination of every proceeding on its merits. Indeed, "[j]ust resolution on the merits seems essentially impossible in the absence of proper disclosure": Michael Wilson & Partners, Ltd. v. Desirée Resources Inc., 2014 BCSC 2055 at para. 47. c) Although the plaintiffs had certain documents in Dr. Manning's garage provided by the defendant before the litigation commenced, there is no evidence that any of the new documents were contained within that collection. d) The plaintiffs were not blind to the importance of

establishing the facts now supported by the documents. They asked questions of the defendant that should have resulted in the disclosure of the documents, or the facts revealed by the documents. But it appears from the record before me that the defendant did not tell the truth in response to these inquiries. [49] In Spiring, the court ordered a mistrial even though there was greater attributable fault on the part of the moving party than is the case here. The court noted: [13] [W]hile neither Young nor Mills is represented by counsel at this time, Young had counsel for most of the proceedings and Mills had counsel for much of it. In spite of that, while the key issue in this case is the existence of an oral agreement, in the twelve years that it took to get this matter to trial, neither defendant made any attempt to examine the plaintiffs for discovery. Nor does it appear that they made any effort, either through the document discovery process or through the nine pre-trials that were held, to pursue the production of documents that they now claim are crucial to the case. It was not until the trial began in December 2003 that the defendants began to raise issues as to the adequacy of the plaintiffs' disclosure. It is "problems" with disclosure that have ultimately led to the motion to re-open the trial. [16] In any event, I refused Mills' request for an adjournment. The trial

proceeded during the week of December 15, 2003, and was scheduled to continue in April 2004. On the continuation date, the defendants made another motion based on the plaintiffs' failure to disclose documents. This time the motion was to dismiss the plaintiffs' claim for failure to disclose documents from John McGoey's file relating to the drafting of the agreement to convert the loan to equity. McGoey's file, if it was not subject to privilege (he was Hooke's lawyer), may have assisted in determining if there had been an agreement to convert but, again, the defendants were fully aware of the existence of this file from the beginning. Young had met with McGoey in 1989. In fact, David Ramsay had contacted McGoey three times in 1993 to ask for documents from his file. Apparently, McGoey never responded to the requests and the defendants never pursued it further. Unfortunately, by the time the defendants thought to request these documents, the file had been destroyed pursuant to the normal file destruction policy of McGoey's law firm. [32] The document which Young discovered in the Montrose Mortgage file, which he retrieved in June 2004, was in fact an amendment to clause 10.02 which confirmed that he was able to dispose of up to 49% of his interest in the MSF project. That this document is relevant and significant to the outcome of this case is apparent. What is not apparent is

why Young did not produce this document himself earlier. He was a party to the agreement and should have had a copy of it all along. What is also not apparent is why the plaintiffs claim that the only document that was disclosed to them by the defendants in the discovery process was the original unamended co-owners' agreement. The defendants claim that the amendment was forwarded by David Ramsay to the plaintiffs' counsel, along with the original agreement, in January 1993. [Emphasis added.] [50] Hence, while I have considered the fact that: a) the plaintiffs could have found these documents at an earlier date, and b) the situation arguably called for a more exhaustive effort to obtain and review all relevant documents available through any source, including through the Class Action, I cannot find that any failure to do so adjusts the equities sufficiently to undermine my fundamental concern that the trial was unfair because the defendant did not tell the truth, assuming the documents are what they appear to be. As the court stated in Spiring: [33] In any event, regardless of who is at fault for the fact that the amended agreement was not produced during the course of the trial, it is clear that because of the importance of clause 10.02 to the issue in the trial, I ought not to proceed to decide the case on the basis of the wrong document. [34] In view of the definitive

position which [the plaintiffs' employee] took in his evidence with respect to when he became familiar with the co-owners' agreement, this new document may significantly impede his credibility, not only on that point, but also perhaps with respect to other matters about which he testified. [36] It is clear to me that both of the "new" documents could have a significant impact on the outcome of the trial. While I do not condone the manner in which the documents came into the possession of the defendants, it is difficult for the plaintiffs to take the high road here when [the plaintiff] Montrose did swear a false affidavit of documents. I do not suggest that Montrose's affidavit was deliberately falsified. However, one has to wonder how diligent a search was made of their files when a phone call from [the defendant] Young managed to reveal the relevant file in a matter of hours. [51] As part of the test for whether to grant a mistrial, I must also consider whether alternate remedies short of a mistrial would be sufficient. I have considered whether it would be sufficient to simply allow the plaintiffs to reopen their case to address the new evidence, or whether the plaintiffs could simply proceed with their appeal, including their application to admit fresh evidence. Either option would minimize the costs for the parties, and reduce the general loss in efficiency caused by a mistrial. However, for the following reasons, I find that such a remedy is inadequate: a) At the very outset of the trial, the plaintiffs abandoned certain pleadings alleging that the defendant knew of the intention behind the scheme: Reasons at para.

2. In light of the new documents, I cannot say that plaintiffs acting reasonably would now make the same concession. The plaintiffs have indicated that they are actively reconsidering this issue. b) The entire manner in which the case is presented will likely need to be adjusted. For example, the plaintiffs' opening took the position that the amount of the commission was irrelevant, likely because they were not in a position to establish any particular dollar value. The documents may now provide data upon which to advance the plaintiffs' claim with greater precision and thus, they may not frame their case in the same way. c) Dr. Manning was the plaintiffs' first witness. He was asked about how he would have reacted to knowing that the defendant was receiving commissions. These questions can now be framed with far greater precision in terms of the specifics of the defendant's earnings from Ms. Samji's scheme. d) The fraudster Ms. Samji was the plaintiff's second witness. Her examination-in-chief suffered from a lack of documentary support for her evidence. Corroboration is vitally important when putting forward a witness with acknowledged credibility problems. Furthermore, the new evidence suggests that even Ms. Samji may have been understating the defendant's role and level of compensation. Her evidence will undoubtedly take on a new light if it can be framed with precision

through the use of the new corroborative documentation. For example, the Spreadsheet suggests that commissions were paid to the defendant both on initial investments and renewals, whereas Ms. Samji only accepted that commissions were paid on initial investments. Indeed, the plaintiffs suggest that they may not need to call Ms. Samji at all if they are allowed to discover the defendant on the new documents before any new trial takes place. e) In relation to the appeal option, the plaintiffs would be fixed with the record of the trial proceeding, subject to the possible admission of fresh evidence. The new documents raise concerns about the integrity of the evidentiary record, and not just issues of law: Grewal v. Grewal, 2016 BCCA 237 at para.

85. The plaintiffs would not have the ability to, for example, confront the defendant with the fresh evidence. Leaving the plaintiffs with an appeal alone would not avoid the miscarriage of justice. [52] As such, it is reasonable for the plaintiffs to propose a full fresh presentation of their case in light of the new documents. The plaintiffs require an opportunity to reframe their case, from their pleadings and opening submissions, through to the evidence of their own witnesses. This is not a case where a mere ability to reopen the case in order to cross-examine the defendant using the new documents is sufficient. I find that the entire trial was tainted by the absence of this information, and must start again. The documents are so important that they are likely to change the complexion of everything heard at the trial: Sawridge Band v. Canada, 2007 FC 657 at para.

403. As the court stated in Spiring: [42] I appreciate that granting a mistrial, especially in a trial without a jury, is rare. I acknowledge that this is a case where neither party has sought a mistrial, but I have concluded that it would be more just to have this matter begin anew so that the case can be pursued in a streamlined way, with all of the evidence to be reviewed by the judge in proper chronology. [53] Furthermore, while a mistrial order will increase the litigation costs for the defendant, I give this expressed concern by the defendant little weight as this problem would have been avoided if the defendant had complied with his obligation to list the documents at the outset. As the court stated in Spiring: [37] As this is a situation where there is blame to be attributed to both parties, I do not consider that re-opening the case will cause undue prejudice to either. In view of the importance of the documents to the issues in the trial, I think they must be before the court. [44] While I am mindful of the fact that a new trial will create expense for the parties, I do not know that it will be an expense far in excess of what will be caused by reopening this trial, in view of the uncertainties of what that reopening could entail. B. Should the Court Seize Itself of Any New Trial? [54] I find the appointment of a new trial judge should occur through the usual

channels. As the court stated in Spiring: [40] I have two concerns about continuing this trial. First, the new evidence will require me to reconsider my findings of credibility with respect to the two witnesses who testified. When the motion to re-open the trial was made, I had not completed writing my reasons in this case. But I had started to write a decision based on my impressions from the evidence that I had heard. It would be far easier for me to rethink my conclusions if this case involved legal principles. But this case turns largely on the credibility of the two witnesses who testified and the new evidence distorts the impressions that I have had throughout the case. More importantly, the original co-owners agreement which was filed by the plaintiffs caused me to have a certain impression of the case which may call into question the manner in which I ruled on evidentiary issues during the trial. [41] Secondly, I am concerned that a continuation of the trial may in fact turn into a retrial. I question whether I will be able to do justice in this case by reopening the trial to allow the introduction of new evidence which will require me to reconsider most of the evidence which has already been tendered and upon which I have already made assessments regarding credibility, relevance and weight. [55] In R. v. Nolin (1982), 1 C.C.C. (3d) 36 (Man. C.A.), the court considered

the appropriate way to manage the fact that the trial judge had previously ruled on an issue relevant to the trial. The accused sought to convert a preliminary inquiry into a trial after the judge at the preliminary inquiry ruled the accused's inculpatory statements to the police inadmissible. The trial judge decided that he could hear the trial, stating that it would be possible for him to "re-think" the case and give due consideration to any further evidence from the Crown. However, the majority of the Manitoba Court of Appeal disagreed. Chief Justice Freedman, for the majority, held as follows: [1] At the preliminary inquiry he ruled the statements inadmissible. If at the trial he made the same ruling, is there not a danger that the public might perceive that ruling as one flowing (even if unconsciously) from a desire for consistency, rather than one freely and independently arrived at? And it is well to remember that not only must justice be done but it must manifestly be seen to be done [3] I think that there is a reasonable apprehension that a judge in the same proceedings, involving the same parties, having made a determination of an important issue, might be perceived as not being able to approach it with a totally fresh and open mind, and in that degree and in that degree only do I find that there is a reasonable apprehension of bias. [56] In R. v. B.R.B., 2003 BCSC

580, the court found that a judge who had heard the accused's first dangerous offender proceeding should not hear the same motion after the appeal court sent it back for a new hearing. The court stated: [20] Mr. Hilderman suggested that cases where guilt or innocence is involved are more sensitive to credibility findings than is this sentencing proceeding. While that may be true to some extent, a sentencing judge's assessment of whether there is a reasonable possibility of eventual control in the community of the risk posed by an offender is nevertheless sensitive to impressions formed about the offender's character and attitude as revealed by all of the evidence, including his own testimonial demeanour and credibility if he testifies. The real question in this case is whether a reasonable and fully informed person would perceive a real likelihood that the evidence heard and findings made at the earlier hearing would unconsciously affect the decision made at the subsequent hearing in spite of the conscientious effort of the judge to guard against that. I am not persuaded that it is any easier to disabuse one's mind of impressions of propensity and tractability gleaned from a prior hearing than it is to disabuse one's mind of impressions of guilt formed at a prior hearing. I think the opposite may well be true. [21] There undoubtedly have been some dangerous offender hearings

reheard by the same judge following appeals on narrow points of law, although it may not be correct to say it happens often. This practice is eminently reasonable, even preferable where findings of fact are not challenged, because it potentially avoids a needless waste of public funding and judicial resources, to say nothing of great inconvenience to civilian witnesses. Furthermore, if the dangerous offender designation is not made, the trial judge is usually in the preferred position to proceed with sentencing. (In this case, the offender pleaded guilty, so this factor is not as significant.) [22] Having said that, this case is devoid of any considerations of necessity that it be reheard by the same judge. As the law stands, Mr. B.R.B. is entitled to insist on a complete rehearing, and that rehearing must be conducted in accordance with the rules of natural justice. [23] I find that a reasonable and fully informed person viewing this matter realistically would conclude that there is a real possibility of bias of the form dealt with in the authorities referred to by the applicant if this hearing were to be held in front of the same judge, notwithstanding the absence of any suggestion of actual bias. [57] In the present case, the key issue was one of credibility, which will now need to be re-evaluated. As Justice Funt stated in Este v. Esteghamat-Ardakani, 2019 BCSC 653 at para.

33, " I could reasonably be perceived by an informed person as, consciously or unconsciously, attempting to justify as a matter of consistency, that which I have previously written, especially if there was further related evidence." Given that a new trial is required in any event, there is less efficiency loss in having another judge hear the matter. On that basis, I decline to seize myself of any new trial. V. CONCLUSION [58] The plaintiffs' motion for a mistrial is granted. I will not tie the hands of any new judge by making directive orders as to the nature of any fresh pre-trial discovery. VI. COSTS [59] The plaintiffs have been substantially successful on this motion. If the parties cannot agree on the entitlement to costs, the plaintiffs may make written submissions on same within 30 days of this decision, with the defendants having 20 days to respond, and the plaintiffs having a further 10 days to reply. "Branch J." _________ The Honourable Mr. Justice Branch