Reopening a Trial

The law relating to the reopening of a trial and the reconsideration of a previous court order is well settled.

The court has a wide discretion, which should be exercised judicially, with caution and sparingly.

The leading case in British Columbia to reopen the trial is Clayton v British  Securities LTD (19434) 49 BCLR 28 ( BCCA). At paragraph 66 – 67:

“ My view has always been that the trial judge might resume the hearing of an action apart from rules until entry of judgment, but as it was vigorously combated I have given careful consideration. The point as far as I know, has not being squarely decided, at least by any case binding on us. It is I think a salutary rule to leave unfettered discretion to the trial judge. He of course would discourage unwanted attempts to bring forward any new evidence available at trial to disturb the basis of a judgment delivered or to permit a litigant. After discovering the effect of a judgment to re-establish a broken down case with the aid of further proof. If the power is not exercised sparingly, and with the greatest care fraud and abuse of the courts processes would result. Without that power and justice might occur.

Hearing new evidence is a departure from its usual procedure, and it is fitting that departures and ordinary practice should be limited by rules to prevent abuse.– A vested right to a judgment is then obtained subject to a right to appeal and should not be lightly jeopardized . Before the gate is closed by entry a trial judge is in a better position to exercise discretion apart from rules, then an appellate court. The trial judge knows the factors in the case that influenced his or her decision and can more readily determine the weight that should be given to new evidence offered.


In deciding whether or not to reopen a case, the governing considerations are:

1) first, what a miscarriage of justice probably occur without a rehearing;
2) would a rehearing probably produce a change of result.


The second arm as to whether the rehearing would produce a change of result was examined in Vance v Vance 34 BCLR 209 at page 211, where the court stated the onus is upon the applicant to satisfy the court on the balance of probabilities, the miscarriage of justice would probably occur without the rehearing and that the evidence of argument that he now wishes to present would probably change the result of the trial. That is not to say that at this stage the applicant must satisfy me that a change in the result would be inevitable.

Some of the instances where the discretion has been exercised reopen the trial prior to the entry of a formal order are:

1) the discovery of material evidence not reasonably discoverable at the time of trial;
2) the occurrence of subsequent developments materially different from presume findings relating to future events, including the assessment of prospective damages in light of events after judgment; Lankenau v Dutton (1988) 27 BCLR (2d) 234 affirmed (1991) 55 BCLR (2d) 218 (BCCA)
3) tests performed after judgment, that newly reveal another type of damage caused by the tort;
4) evidence that could have been presented at the hearing or trial that would lead to an injustice;
5) the reasons for judgment rely on an impossible factual conclusion;
6) the terms of the order were uncertain may have patently conflicted with C’s or soon legislation;
7) there is a perceived conflict of interest of a parties lawyer at trial;
8) by oversight counsel neglected to lead evidence that may be material to the outcome MS v R(DD) (1996) 26 BCLT (3d) 231 (BCCA)

The BC Gas utility v . Alpha Manufacturing was most recently followed in Hambleton v Hambleton 2018 BCSC 999, where the court reconsidered a previous order on the basis that there was sufficient new evidence or argument, which, if available at the time of the initial order, would have likely changed the result. The case dealt with new evidence before the court that justified a reconsideration of his previous order as a result of a mental capacity hearing conducted by a person at the patient’s family doctor, but not the doctor herself.

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