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Reopening a Trial

Reopen a Trial

Shen v Chan BCSC 2514 is an example where a plaintiff lost at trial and attempted to reargue and reopen the case before the same judge rather than appealing the decision.

The application was dismissed and the court referred to the main principles set out below.

In Mayer v. Mayer Estate, 2020 BCCA 282, our Court of Appeal stated:

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 … 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.)

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