[35] Ms. Blake contends the trial judge improperly refused to consider the following medical reports: (i) Designated Assessment Centre reports prepared by Dr. Scott Garner, a physiatrist dated August 14, 2003 and June 1, 2005; (ii) an independent physiatry assessment report dated October 2, 2006, prepared by Dr. A. Ghouse; (iii) an April 4, 2003 report prepared by Dr. Keith Meloff, a neurologist; and, (iv) three reports prepared in 2003 by Maureen Ward, an occupational therapist.
[36] Dominion submits there was no misunderstanding during the trial about the use parties could make of the documents in exhibit 1. Further, Dominion argues that Ms. Blake controlled the witnesses whom she could call in support of her case and, in the result,failed to call Drs. Garner, Ghouse and Meloff, even though it was open to her to do so.
Chronology of events
[37] This 10-day trial was conducted in three tranches in May, June and December of 2012. On the second day of trial, Ms. Blake’s counsel, Mr. Ferro, tendered as an exhibit a two-volume Accident Benefits Brief that was marked as exhibit 1. At para. 184 of his reasons the trial judge recounted the directions he had given about exhibit 1: