“I do not doubt that in a true emergency there is a residual discretion in judges of this court to entertain a motion even if a trial decision is under reserve. Short of such a true emergency (of the sort that would justify immediate injunctive relief) in circumstances where the trial judge is not available, I cannot readily envision a situation in which such a motion ought to be dealt with by another judge. In a family court case involving custody and access, the parenting issues are the very issues before the trial judge and to seek additional interim orders dealing with those matters from another judge is in effect to usurp her role: McKay v. Proprietary Mines Ltd. 1938 CanLII 284 (ON CA), [1938] 2 DLR 770 (note) and Jupp v. Jupp 2008 CarswellOnt 3756 (SCJ).
Perhaps there is some confusion as to when a trial begins and finishes. That should be dispelled.
It is trite law, that a trial judge remains seized of the issues before her until a formal order or judgment is entered in the court record. There are several cases that stand for the proposition that a judge is not functus officio until the order is formalized. On the other hand, this does not mean that trials should be converted to rolling ongoing interminable hearings. Once the court has released a decision, it would be a rare case where it might be in the interests of justice to withdraw reasons of the court and to rehear the case on the merits: see Chitsabesan v. Yuhendran, 2016 ONCA 105 (CanLII) and Pastore v. Aviva Canada Inc., 2012 ONCA 887 (CanLII). I make this point simply to emphasise that in certain circumstances a trial judge could re-open the hearing even if she had released her reasons. The trial is not technically concluded until the judgment is entered. In my view the trial is still in progress.
Trials are of course subject to formal procedures. Just because the decision is under reserve and the trial is still in progress, does not confer upon the parties or the trial judge a licence to continually entertain additional evidence. Generally speaking a party must marshal all of its evidence and present it during the trial. The party is not permitted to try to bring more evidence to bolster its case after that party’s case is closed. It is for that reason that rules and principles have evolved concerning this issue of re-opening the case. Justice Mackinnon referred to them when she gave leave to the applicant to re-open his case in April. She referred with approval to the factors outlined in Hughes v. Roy, 2016 ONCJ 65 (CanLII). Amongst those factors are whether the evidence is relevant, necessary and reliable, whether it could have been obtained before the trial by the exercise of reasonable diligence and whether it would cause a miscarriage of justice if the new evidence were not accepted.”