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Trials - Re-Opening

Malkov v. Stovichek-Malkov (Ont CA, 2018)

In this case the Court of Appeal cites factors to be taken into account when re-opening a trial:
[14] In Catholic Children’s Aid Society of Toronto, the court stated, at para. 17:
Factors which a court will consider in civil cases in determining whether to allow a plaintiff to re-open are set out below:

• 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? [Footnotes omitted.]
[15] We agree that the Catholic Children’s Aid Society of Toronto case provides a helpful list of factors for a trial judge to consider when entertaining a party’s request to reopen her case. In our view, when the reasons of the trial judge for her ruling are read as a whole, they disclose that she took into account the factors most relevant to the specific circumstances of the case.

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