Re-Opening a Case For New Evidence

Re-Opening a Case For New Evidence


B(K) v B(J) 2016 BCSC 1904 involved an application for reopening a case that had been decided and attempt to introduce new evidence as to the increased valuations of two properties.

The over riding test is  it in the interests of justice to do so.

The Court reviewed the law relating to the discretion of the court   and declined to re- open the case to allow new evidence.

Reopening Proceedings and New Evidence

11      Counsel should proceed as quickly as is reasonably possible to have the decisions of the trial judge reduced to the form of an order and to have the order approved or settled and entered; see Re Janke (1977), 2 B.C.L.R. 378 (S.C.).
12      However, a trial judge retains discretion to re-open an issue before formal judgment has been entered. This discretion is unfettered but is to be used sparingly; see Cheema v. Cheema, 2001 BCSC 298at para. 4; Sykes v. Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.) at para. 9; and Clayton v. British American Securities Ltd. (1934), 49 B.C.L.R. 28 at 66-67 (C.A.).
13      In Lemare Lake Logging Ltd. v. British Columbia (Minister of Forests & Range), 2009 BCSC 902, Grauer J. reviewed the case law relevant to the discretion to re-open, and at para. 7, said:
  1. This discretion should be exercised sparingly and with the greatest care to avoid unwarranted attempts to disturb the basis for judgment, or to permit a litigant to re-establish a broken down case.
  2. The onus is on the applicant to establish that a miscarriage of justice would probably occur if the matter is not reopened.
  3. New evidence is a usual, but not an essential, prerequisite; where it is offered, the onus is on the applicant to establish that it would probably change the result of the proceeding.
  4. The credibility and weight of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result.
  5. Although the question of whether the evidence supporting the application could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would likely occur if the hearing is not reopened.
  6. In general, reconsideration of an issue is not an alternative to an appeal.
14      In Bronson v. Hewitt, 2010 BCSC 871, Goepel J., as he then was, concluded:
[33] From my review of the authorities I take the law to be that new evidence will only be admissible on a reconsideration application if it would likely change the result and, except in exceptional circumstances, the evidence could not have been obtained by reasonable diligence before the trial. In exceptional circumstances, in order to prevent a miscarriage of justice, fairness may dictate that new evidence will be admissible even though the evidence may have been discoverable prior to trial. New evidence will generally not be admissible in situations where the evidence was not called at trial because of tactical considerations.
15      Apart from new evidence, a judge may also properly re-open if satisfied, either because of the argument of one of the parties, or on the basis of his or her own reconsideration of the record, that the original judgment was in error because it overlooked or misconstrued material evidence or misapplied the law; Sykes at para. 10.
16      The Court of Appeal recently considered the principles applicable to a reconsideration application in Moradkhan v. Mofidi, 2013 BCCA 132. The Court reviewed the law at paras. 28-32, relying heavily on the summary of MacKenzie J., as she then was, in Mohajeriko v. Gandomi, 2010 BCSC 60 at paras. 20-27, 31-32. Justice Garson said:
[31] I agree with, and adopt the comments of MacKenzie J. I would summarize the main principles applicable to such an application in the following way:
  • it is generally speaking in the interests of justice to consider that a trial is complete when each side has closed their case and the judge has delivered his or her judgment;
  • a judge’s unfettered discretion to reopen a trial should be exercised with restraint;
  • a party may not use the rule to re-argue, re-cast, or re-state his or her case, rather the rule is available to remedy what might otherwise be a substantial injustice;
  • it is not intended that a party should be able to lead substantial new evidence, nor does the rule generally permit the leading of new expert evidence;
  • the reasons that the evidence was not led or submissions not made in the first place may be relevant to the exercise of the judge’s discretion, particularly where the failure to do so in the first place was a considered or pragmatic decision; and
  • the discretion should only be exercised if the reception of the new evidence would probably change the result of the trial.
I would add to this list that a judge may reasonably exercise such discretion where a relatively discreet error in math or some mechanical consideration of the evidence is clearly in error. Finally, the overarching consideration is whether it is in the interests of justice that the court reopen the case. (See also Brown v. Douglas, 2011 BCCA 521, 314 B.C.A.C. 143.)
[32] From a procedural point of view it seems to me that fairness would dictate that an application must be made to the judge on notice to the other party with an outline of the evidence to be tendered. The judge will then decide to reopen or not, and may direct a further hearing, or if appropriate, decide the question concurrently with the application to reopen. Such an application must be governed by the Supreme Court Civil Rules, B.C. Reg. 168/2009, relating to interlocutory procedures and the conduct of trials. …

Recommended Posts