Ocean vs. Economical: Judge says trial sets legal record


Ocean vehicle
  • Ocean vehicle
Sullivan vehicle
  • Sullivan vehicle

Deborah K. Smith, associate chief justice of the Nova Scotia Supreme Court peered down sternly from the bench in courtroom 301 and declared: “In my entire legal career, I have never seen a re-direct that has taken longer than cross-examination.”

The judge made her declaration on Day 16 of a marathon civil lawsuit in which artist and pewter designer May Ocean is suing Economical Mutual, one of Canada’s largest auto insurance companies. The lawsuit arises from a crash nearly 10 years ago on the Prospect Bay Road in which Ocean’s brand-new Volkswagen Golf collided with a 1988 Honda Civic driven by Raymond Patrick Sullivan, a 22-year-old uninsured driver. (For original story see, May Ocean vs. Goliath, November 12, 2009.)

The 53-year-old Ocean is representing herself in court. Two lawyers are defending Economical while a third represents Sullivan whom Ocean is also suing. “I’m up against people who know the ropes,” Ocean had complained on Day 14 of the trial. “Three lawyers working against little old me.”

Ocean’s growing frustration with the intricacies of court procedures led her to email the judge last month announcing she would no longer participate in the trial even though she expected the proceedings to continue. (See, Strange twist in 10-year legal battle) But after a meeting with the judge and the lawyers opposing her, Ocean decided to continue presenting her case when the trial got underway again after a scheduled 10-day break.

Ocean vs. accident expert

On October 25th, when court reconvened, Ocean tried to persuade the judge that she should be allowed to cross-examine Stuart Smith, a professional engineer and accident reconstruction expert with 14 years experience. She argued that since Economical had originally hired Smith to investigate her collision with Sullivan, he was biased in favour of the insurance industry.

“Dr. Smith is not supposed to have a bias, but he gets a regular income from Economical, not from people like me,” Ocean said referring to “golden handshakes within the insurance system and Dr. Smith is part of that system.”

The judge seemed puzzled by Ocean’s plea to have Smith declared a hostile witness since Ocean herself had called him to testify as part of her case. The judge noted that Smith’s initial report on the accident strongly favoured Ocean concluding, among other things, that Sullivan had been travelling about 91 kilometres-an-hour in a 70 kilometre zone, that he was in the wrong lane when the collision occurred and that he could have either stopped completely or swerved back into his own lane to avoid the accident.

However, Ocean continued to insist that Smith’s report and testimony would allow Economical to argue she was partly to blame for the crash.

Eventually, the judge ruled that she would not declare the accident expert a hostile witness and would not permit Ocean to cross-examine him. Ocean then began two full days of “redirect” examination during which the judge warned her repeatedly not to cross-examine her own witness. As Ocean’s questioning continued, the judge explained that a re-direct examination is supposed to clarify points raised during cross-examination which, in this case, had lasted only about half a day.

“It is amazingly expensive to have us sitting here,” the judge warned at one point, adding it was her duty as the trial judge to ensure that court time was being used efficiently.

The trial adjourned on October 27th and is tentatively scheduled to continue on November 22nd.