“The Family Law Rules, O. Reg. 114/99 does not address the request to reopen the trial to file new evidence. Rather, one needs to turn to r. 52.10(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) which provides the following authority:
FAILURE TO PROVE A FACT OR DOCUMENT
52.10 Where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party’s case,
(a) the judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs;
Subrule 53.01(3) of the Rules permits a trial judge to recall, at any time, a witness for further examination.
In Malkov v. Stovichek-Malkov, 2018 ONCA 620, the Ontario Court of Appeal affirmed the factors to consider when entertaining a party’s request to reopen the case, as originally set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762, 64 R.F.L. (7th) 470, at para. 17:
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- At what stage of the trial is the motion made?
- Why was evidence not adduced during the party’s case? Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party’s attention, despite diligent earlier efforts?
- What is the prejudice to the defendant? A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.
- Can any prejudice be remedied in costs?
- How would a reopening of the case affect the length of the trial? How much evidence would have to be revisited?
- What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or non-controversial point?
- Does it merely “shore up” evidence led in chief?
- Is the proposed new evidence presumptively credible?
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The need for finality is paramount, especially when a decision has been rendered and judgment entered. If a case has not yet been decided, fairness and truth-seeking should be considered over finality. When a decision is pending and has not been made, the test for admitting fresh evidence does not include whether the fresh evidence could affect or have an influence on the result: Brasseur v. York, 2019 ONSC 4043, at paras. 38 and 45.”