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Evidence - Recalling Witnesses [RCP R53.01(3)]. Interhealth Canada Limited v. O’Keefe
In Interhealth Canada Limited v. O’Keefe (Ont CA, 2023) the Court of Appeal considered a trial court's discretion to grant a R53.01(3) ['Trial Judge to Exercise Control'] motion, here over recalling a prior witness:IV. THE RECALL MOTION
[63] On day 15 of the trial, after both the appellant and Mr. O’Keefe had closed their cases, the appellant brought a motion pursuant to r. 53.01(3) of the Rules of Civil Procedure to recall Mr. O’Keefe for further cross-examination on two allegedly newly discovered affidavits, neither of which was sworn by Mr. O’Keefe. The affidavits had been filed in a different application, in 2007. During the trial, the appellant had cross-examined one of the affiants and was permitted to and used his affidavit to attempt to impeach him.
[64] The appellant argues that the trial judge’s exercise of discretion in dismissing its motion was unreasonable in the circumstances. In particular, it argues that the affidavits disclose relevant information in relation to the Cromwell Opportunity and, since the respondents should have disclosed the affidavits in their affidavit of documents, the fair thing would have been to permit them to recall Mr. O’Keefe to cross-examine him about them. The appellant also argues that the trial judge erred by refusing to admit the affidavits as evidence.
[65] I do not agree that the trial judge’s exercise of her discretion to dismiss the recall motion was unreasonable or that she erred in refusing to admit the affidavits as evidence at trial.
[66] Both parties cited the same jurisprudence, including Griffi v. Lee, 2005 CanLII 48316 (ONSC), as to the principles that the trial judge should consider in determining the motion. Consistent with the jurisprudence, the trial judge considered several factors in coming to her conclusion that the motion should be dismissed.
[67] The trial judge found that the appellant had been aware of the existence of the 2007 application since 2008, when the first affidavit of documents was served; the appellant received a copy of the face page of the 2007 application record in response to undertakings in 2011, along with the respondents’ position that the application record was not relevant; the appellant had taken no steps in the intervening years to bring a motion to deal with the issue; appellant’s counsel had asked Mr. O’Keefe in his examination for discovery whether the affidavits were sworn in the 2007 application; and appellant’s counsel had cross examined Mr. O’Keefe extensively on the 2007 application and yet did not ask about the affidavits. She also considered that the recall motion was brought in the late stage of the trial.
[68] The trial judge considered the jurisprudence which the parties agreed applied. She balanced the interests of both parties. She considered relevant factors and concluded that Mr. O’Keefe should not be recalled. She rejected the appellant’s argument that recall was warranted solely on the basis of relevance. The question was not whether the evidence sought to be gained from recalling Mr. O’Keefe was relevant (which the respondents continued to dispute at trial). Rather, it was whether there would be a “failure of justice” if he were not recalled. The trial judge did not err in applying a multi-factorial approach. Except perhaps in exceptional circumstances, relevance alone sets the bar too low on a recall motion.
[69] The trial judge did not err by refusing to admit the affidavits. She had permitted the appellant to use the affidavit of one of the witnesses to attempt to impeach that witness. There was therefore no basis or need to admit the affidavit itself as evidence. As to the other affidavit, the affiant was not a witness at trial. The trial judge properly ruled that it was inadmissible hearsay. And none of the exhibits to the affidavits were identified or authenticated in such a way that they could have been admitted into evidence in their own right.
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