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Review - Re-opening - Sagaz Cases. David v. Loblaw Companies Limited
In David v. Loblaw Companies Limited (Ont CA, 2025) the Ontario Court of Appeal dismissed a second class proceeding certification motion, here where the plaintiff filed "an amended pleading which, in their view, corrected its deficiencies ...".
Here the court considers the Sagaz-reopening interpretation that the motion judge used to support the respondent's res judicata discretion argument:[25] Third, the appellants submit that the motion judge also erred in applying the “Sagaz test” to determine whether the relief they sought should be granted – an error that led him to view the evidence that the representative plaintiffs submitted through the wrong lens. The point of the new evidence was not, they say, to prove by admissible evidence that Maple Leaf participated in the alleged conspiracy – in other words, that there was merit to the proposed claim in the amended pleading. According to the appellants, the evidence was proffered to show that the amended allegations were responsibly made and to explain their timing.
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iii. The Motion Judge Did Not Err in Refusing to Exercise the Discretion Not to Give Preclusive Effect to Paragraph 5 of the Certification Order
[45] There exists a discretion not to apply res judicata in a particular case. The discretion exists because there are circumstances in which “the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 53. However, where the order that gives rise to res judicata was made in court proceedings as opposed to an administrative hearing, the discretion is “very limited”: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 62, citing G.M. (Canada) v. Naken, 1983 CanLII 19 (SCC), [1983] 1 S.C.R. 72, at p. 101.
[46] The appellants various arguments to the effect that the motion judge wrongly prioritized finality over the need for flexibility in a class action are properly characterized as raising a concern about whether the motion judge erred in his approach to the discretion not to apply res judicata. In my view the appellants have not shown a reversible error in the motion judge’s failure to exercise his discretion not to give paragraph 5 of the Certification Order preclusive effect.
[47] The appellants argue that the motion judge should not have used the Sagaz test to guide the exercise of his discretion. In Sagaz, the court was considering a request to re-open a trial for further evidence after reasons for judgment had been released, but before the formal judgment had been entered. The two-prong Sagaz test, focusing on whether the further evidence was discoverable before the trial through the exercise of reasonable diligence and on whether that evidence would probably have changed the result, was particularly geared to that situation. The appellants say this test is inapt where the provision of the Certification Order sought to be revisited (paragraph 5) is an issue to be decided on the basis of the pleadings which are assumed to be true, rather than evidence.
[48] Maple Leaf points out that the Sagaz test has been applied in the certification motion context. In Risorto v. State Farm Mutual Automobile Insurance Co. (2009), 72 C.C.L.I. (4th) 60 (Ont. Div. Ct.), the Divisional Court applied the test to the question of whether a denial of certification based on the insufficiency of evidence about commonality and the suitability of the representative plaintiff could be re-opened for further evidence on those certification criteria before the formal order was issued. In Risorto, at para. 34, Gray J., stated that the two-prong test applies to both trials and motions where the question is whether the matter should be re-opened for the calling of new evidence.[9]
[49] It may have been preferable if the motion judge had articulated the test as whether there were grounds for him to exercise his very limited discretion not to apply res judicata arising from the Certification Order, rather than proceeding directly to the Sagaz test. Nevertheless, in my view the motion judge’s reference to the Sagaz test did not lead to an unreasonable exercise of that discretion, or to any error in principle that would justify setting aside his decision.
[50] First, the cautious approach in Sagaz and Risorto to reopening a matter that has already been heard is animated by principles that are relevant to whether the court should exercise the very limited discretion not to apply res judicata arising from a court order. The Sagaz test is a product of balancing the interests of finality and fairness: Sagaz, at para. 60. It reflects the “strong interest in finality, which should only be departed from in exceptional circumstances”: Risorto, at para. 35.
[51] Res judicata is the court’s ultimate expression of the primacy of finality. As Binnie J. stated in Danyluk, at para. 18: “The law rightly seeks a finality to litigation … A litigant, to use the vernacular, is only entitled to one bite at the cherry.” Finality interests are thus given even greater weight after (as opposed to before, which was the case in Sagaz and Risorto) the formal order has been issued and the avenue for reconsideration of a decision is available by appeal. In Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848, at p. 860, the Supreme Court stated:[t]he general rule [is] that a final decision of a court cannot be reopened … [t]he basis for [that rule] was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions:
1. where there had been a slip in drawing it up, and,
2. where there was an error in expressing the manifest intention of the court. [52] In other words, the motion judge did not err by taking an approach, which he viewed as reflected in Sagaz and other cases, that finality was important and not to be lightly undone, rather than adopting the appellants’ contention that certification should be viewed as a “fluid and flexible process” that could be periodically revisited.
[53] Second, although Sagaz and Risorto deal with the reopening of evidentiary issues, the appellants overemphasize the distinction from this case. It was only on the initial certification motion that the representative plaintiffs were entitled to have the question of whether they had a cause of action against Maple Leaf assessed on the allegations in their pleading, assumed to be true. Once that question was finally decided against them, making the issue res judicata, they were not entitled to simply present an amended pleading and obtain a different result about certification against Maple Leaf. If they were, there would be no meaning to the principle noted above, endorsed by the Supreme Court, that where the order that gives rise to res judicata was made in court proceedings as opposed to an administrative hearing, the discretion not to apply res judicata is “very limited”: Danyluk, at para. 62, citing Naken, at p. 101.
[54] Here, the appellants proffered evidence, and the question was whether the evidence was capable of bringing the representative plaintiffs within that very limited discretion. The motion judge was entitled to scrutinize that evidence. He found that what was proffered did not consist of admissible evidence that was new or suggestive of an arguably meritorious claim on any standard. Although the appellants claim that this holds them to too high a standard, the alternative they submit is unpersuasive.
[55] On the appellants’ own characterization of their evidence in this court, it shows nothing more than the development of the “legal landscape” and that the more particularized allegations in the amended pleading are responsibly made (as opposed to being true, or revealing on any evidentiary standard, an arguably meritorious case). That kind of evidence falls far short of demonstrating the kind of fundamental unfairness that would justify the exercise of the very limited discretion to permit relitigation of a matter finally decided in a court proceeding. . David v. Loblaw Companies Limited
In David v. Loblaw Companies Limited (Ont CA, 2025) the Ontario Court of Appeal dismissed a second class proceeding certification motion, here where the plaintiff filed "an amended pleading which, in their view, corrected its deficiencies ...".
Here the court finds that the plaintiff, by their loss on the first certification motion (and by not appealing that), incurred res judicata such that seeking an amendment of the certification order was barred:[3] The principal issue in these appeals is the effect of the provision in the Certification Order refusing to grant certification against Maple Leaf on the “no cause of action” ground, namely that the pleading did not disclose a cause of action against Maple Leaf.
[4] For the reasons that follow, I conclude that a decision to refuse certification against a defendant on the no cause of action ground gives rise to res judicata and has preclusive effect. In the absence of a successful appeal of that decision it is not open to a representative plaintiff to later seek to amend the pleading and the Certification Order so as to resurrect the class proceeding against that defendant. Although in narrow circumstances a court may exercise a discretion not to apply res judicata, this is not such a case.
[5] I agree with the conclusion of the motion judge and would therefore dismiss the appeals.
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[10] In his reasons for the Certification Order,[6] the certification judge explained that the pleading against these four parent corporations simply lumped them in with their subsidiaries who actually produced or retailed bread and who were alleged to have actually taken the steps that constituted the conspiracy. The pleadings did not make particularized allegations that these parent corporations did anything to participate in the alleged conspiracy and did not plead facts that would allow the court to ignore their separate legal personalities vis-à-vis their subsidiaries.
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5. The Motion Judge’s Decision
[18] The motion judge, who was the same judge who made the Certification Order, dismissed the representative plaintiffs’ requests and granted those of Maple Leaf.
[19] Following Obodo v. Trans Union of Canada, Inc., 2022 ONCA 814, 164 O.R. (3d) 520, leave to appeal refused, [2023] S.C.C.A. No. 12, the motion judge considered that the decision to refuse certification against Maple Leaf finally decided the question of whether the representative plaintiffs could proceed against Maple Leaf. In his view neither the pleading amendment provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, nor the provisions of s. 8(3) of the CPA (that permit amendments to certification orders) or s. 12 of the CPA (that permits the court to make orders respecting the conduct of a class proceeding) allowed for the revisiting of a matter that had been finally decided and had not been successfully appealed.
[20] The motion judge noted that relitigation of matters already decided based on new evidence was permitted only when a strict standard was met. He adopted, as that standard, the test for re-opening a trial to hear new evidence set out in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, which he interpreted to require evidence that would probably have changed the result if initially presented and that could not have been obtained before the initial hearing. He concluded that the evidence put forward by the representative plaintiffs, for various reasons, did not meet the test. For instance, the ASF and the court’s finding of guilt were not evidence against Maple Leaf, other evidence was not particularly new or fresh having been previously available to the representative plaintiffs, and the emails were unattested to and thus unsworn hearsay. He excluded some of the evidence as inadmissible.
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2. Discussion
a. Paragraph 5 of the Certification Order Has Preclusive Effect
[26] At the heart of the resolution of the appeals is the effect of paragraph 5 of the Certification Order which I reproduce again for ease of reference:
THIS COURT ORDERS that the causes of action alleged against Walmart Inc. (formerly known as Wal-Mart Stores, Inc.), Empire Company Limited, Grupo Bimbo, S.A.B de C.V, and Maple Leaf Foods Inc. do not meet the requirements for certification set out in section 5(1)(a) of the CPA, and shall not be certified.
[27] Bound up in the appellants’ arguments is the proposition that paragraph 5 of the Certification Order was not “final” in the sense that it did not “finally” dispose of the claim against Maple Leaf. Rather, on the appellants’ interpretation, the determination that the pleadings disclosed no cause of action against Maple Leaf was transitory – in effect unless and until the representative plaintiffs amended their pleadings, something the appellants say they maintained the right to do. Equally, according to the appellants, the determination that the causes of action alleged against Maple Leaf shall not be certified was also subject to revision in changed circumstances such as an amended pleading.
[28] I do not accept the appellants’ proposition. Paragraph 5 of the Certification Order is a final determination of the rights of the representative plaintiffs to proceed against Maple Leaf on any claim that it is liable for the conspiracy to fix the price of Packaged Bread in Canada referred to in their action. Paragraph 5 of the Certification Order gives rise to res judicata, barring any further proceedings between the parties or their privies for the same subject matter.
[29] This conclusion follows directly from Obodo, this court’s leading decision on the effect of a refusal to certify a claim because the pleadings did not disclose a cause of action. At issue in Obodo was whether such an order could be appealed directly to the Court of Appeal, which (at the time) would be the case only if the order was final. In concluding that it was final in this sense, Obodo determined that, unless successfully appealed, such an order meant the claim against the defendant could not go forward in any forum. At paragraph 16, Doherty J.A. stated:I agree with Trans Union that the order under appeal is for some purposes properly characterized as an order certifying a proceeding as a class proceeding. To the extent that the Class Proceedings Act, 1992 governs rights of appeal, the appeal from the order certifying the proceeding as a class proceeding goes to the Divisional Court with leave. However, the motion judge’s [certification] order does more than identify the claims that can and cannot go forward as part of a class action. By holding that the intrusion upon seclusion claim did not disclose a cause of action against Trans Union, the motion judge effectively determined that the claim could not go forward. The order was a final order. Mr. Obodo cannot pursue the intrusion upon seclusion claim against Trans Union in any forum, absent a successful appeal. [Emphasis added.] [30] The appellants contend that Obodo is distinguishable because the problem with the pleading in that case went beyond an absence of particularized allegations. According to the appellants, the fatal flaw in the Obodo pleading was so pronounced as to be incurable, while here it was the absence of particularized allegations. I do not accept that distinction. The effect of an order that refuses to certify a claim because the pleading fails to disclose a cause of action is the same, irrespective of the flaw in the pleading that gave rise to that order being made. One does not go behind the order and consider how close to asserting a cause of action the unsuccessful plaintiff came.
[31] The appellants do not otherwise challenge the proposition that, following Obodo, paragraph 5 of the Certification Order was final for the purpose of appeal. They resist the implications of that conclusion, both as to what the order decided and the order’s effect on further attempts to litigate the same issue, but in my view the implications are irresistible.
[32] An order is final for the purpose of appeal when it “determine[s] the real matter in dispute between the parties—the very subject matter of the litigation—or any substantive right to relief of a plaintiff or substantive right of a defendant”: Drywall Acoustic Lathing Insulation Local 675 Pension Fund v. SNC-Lavalin Group Inc., 2020 ONCA 375, at para. 16. That is what paragraph 5 of the Certification Order did. It determined the subject matter in dispute between the representative plaintiffs and Maple Leaf by determining that the representative plaintiffs had not asserted a cause of action, in other words, they had no substantive right to relief against Maple Leaf arising out of the conspiracy to fix prices for Packaged Bread that is the subject of their action.
[33] As for the effect on further attempts to litigate the same or a similar issue, an order that is final for the purposes of an appeal has preclusive effect. It “gives rise to a plea of res judicata in subsequent proceedings on the same issue or issues”: V.K. Mason Construction Ltd. v. Canadian General Insurance Group Limited (1998), 1998 CanLII 14615 (ON CA), 42 O.R. (3d) 618 (C.A.), at para. 19. The doctrine of res judicata[8] prevents the relitigation of previously adjudicated matters, where the basis of the cause of action was argued or could have been argued in a prior action, the same parties were involved, and the underlying decision is final: The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354, 145 O.R. (3d) 759, at paras. 50-51, leave to appeal refused, [2019] S.C.C.A. No. 284. Applying these principles, a determination on a certification motion that a pleading failed to disclose a cause of action has been held to give rise to res judicata barring a subsequent attempt to amend the pleading: Turner v. York University, 2011 ONSC 6151, at paras. 6, 60-65.
[34] The requirements for the application of res judicata to the representative plaintiffs’ motion to amend are present here.
[35] First, whether better particularized or not, the amended pleading asserts, in the relevant sense, the same claim as was rejected by the Certification Order, namely, a claim to substantive relief from Maple Leaf arising from the same alleged conspiracy. The amendment sought to the Certification Order reinforces that conclusion, as it seeks to reverse the effect of paragraph 5 and to place Maple Leaf in the category of a Certified Defendant facing Certified Claims, the very outcome that was rejected by the Certification Order itself.
[36] Second, the parties are the same. Indeed, the conspiracy alleged in the amended pleading, is among the same parties, about the same subject matter, harming the same persons, as was alleged in the prior version of the pleading that was held not to disclose any right to substantive relief against Maple Leaf.
[37] Third, as noted above, paragraph 5 of the Certification Order is final.
[38] Paragraph 5 of the Certification Order therefore stands as a bar to the representative plaintiffs’ attempt to relitigate the claim that Maple Leaf is liable for the conspiracy referred to in their action to fix the price of Packaged Bread during the time period in question, by amending their pleadings or by amending the Certification Order. . Doostyar v. Canada [vetting]
In Doostyar v. Canada (Fed CA, 2025) the Federal Court of Appeal considered a situation where the judge sent their draft order to the parties for typographical 'vetting' (but not for substantive reconsideration, or 're-opening'):[3] The Tax Court prepared its judgment and supporting reasons. But before formally pronouncing judgment, it sent draft, unsigned copies to the parties. The Tax Court asked them to provide comments on any "“typographical, grammatical, punctuation, or [any] similar error[s] or any omissions”" and any "“comments in respect of the written presentation of…[the] decision”". The Court explicitly told the parties that this was not an invitation to revisit "“the substance of his decision”": see Appeal Book, Tab 9, p. 74.
[4] In response, the appellants filed a letter with the Tax Court seeking to do just that. It asked to reopen the trial so the Tax Court could "“receive and consider…submissions”" based on "“the documents [that] were before the Court”". In their notice of appeal in this Court, the appellants confirm that they wanted to make "“further submissions”" and "“this [is] not a matter of new evidence”".
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[8] In asking the parties for comments, the Tax Court was looking for input on small, non-substantive things. It was not inviting the parties to apply to reopen the evidentiary portion of the trial or to provide further submissions on issues already argued.
[9] In substance, the Tax Court had decided the matter. Only after the Tax Court revealed the result of its decision by circulating its final judgment and supporting reasons did the appellants react by requesting to make further arguments. In these circumstances, the appellants’ request smacks as an attempt to appeal to the Tax Court to revisit a decision it had already made. The Tax Court did not commit any reversible error in declining to do so.
[10] The leading authority on a first-instance court reopening a trial is 671122 Ontario Ltd. v. Sagaz Industries, 2001 SCC 59, [2001] 2 S.C.R. 983. Nothing here offends Sagaz Industries.
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[12] We wish to comment on the practice the Tax Court followed here. It is for the Tax Court alone—not the parties—to vet its judgment and supporting reasons for typographical, grammatical, punctuation and similar errors. . 671122 Ontario Ltd. v. Sagaz Industries Canada Inc.
In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (SCC, 2001) the Supreme Court of Canada held that common law re-opening (as opposed to statutory set-aside) of a trial should be left to the trial judge, that the criteria for ordering it is much the same as a fresh evidence test, and that common law re-openings are only available before a formal judgement is taken out:B. Motion to Reopen the Trial
59 After the trial judge’s reasons were released, but before the formal judgment was entered, Landow, who did not testify at trial, gave Design an affidavit admitting to the conspiracy to bribe and implicating Kavana in the conspiracy. Design brought a motion to have the trial reopened to hear the fresh evidence. The trial judge applied the two-part test from Scott, supra, to assist in determining whether to exercise his discretion to reopen the trial. First, he decided that the evidence, if presented at trial, probably would not have changed the result. Second, he found that the evidence could have been obtained before trial by the exercise of reasonable diligence. The Court of Appeal overturned the trial judge’s decision, having found that he erred on both branches of the test and that the trial should have been reopened to hear Landow’s evidence. Was the Court of Appeal in error to reverse the trial judge’s exercise of discretion to refuse to reopen the trial?
60 This Court provided in Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, 1997 CanLII 391 (SCC), [1997] 1 S.C.R. 1092, at para. 26:It has long been established that, absent an error of law, an appellate court should not interfere with the exercise by a trial judge of his or her discretion in the conduct of a trial. Appellate courts should defer to the trial judge who is in the best position to decide whether, at the expense of finality, fairness dictates that the trial be reopened. See Clayton v. British American Securities Ltd., 1934 CanLII 229 (BC CA), [1934] 3 W.W.R. 257 (B.C.C.A.), at p. 295:[The trial judge] would of course discourage unwarranted attempts to bring forward new evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof. 61 Further, the case law dictates that the trial judge must exercise his discretion to reopen the trial “sparingly and with the greatest care” so that “fraud and abuse of the Court’s processes” do not result (see Clayton, supra, at p. 295, cited in Scott, at p. 774).
62 In this case, the trial judge decided not to exercise his discretion to reopen the trial because neither of the two steps of the test in Scott, supra, was met to his satisfaction. First, he found that he could not say that the new evidence, if presented at trial, would probably have changed the result, only that it may have changed the result. If the trial were to be reopened, Landow’s evidence might well not be believed. His credibility would be in issue. Second, the trial judge found that Landow’s evidence could have been obtained before trial. Design could have compelled Landow to testify under oath at trial. While this carried some risk, the trial judge viewed it as a trial strategy, a conclusion he was entitled to reach.
63 In my opinion, the Court of Appeal erred in substituting its discretion for that of the trial judge in deciding to reopen the trial. On the first branch of the test set out in Scott, the trial judge found that Landow’s credibility would be in issue whereas the Court of Appeal found it difficult to see how the trial judge could make this determination without hearing Landow testify. In the Court of Appeal’s determination, it was not sufficiently clear that Landow would be disbelieved. I disagree with the Court of Appeal on this point. Landow’s affidavit evidence contradicts his sworn evidence on discovery, particularly with respect to the existence of the bribery scheme which Landow avoids acknowledging on discovery. To this significant extent, Landow is akin to a recanting liar. Lord Denning’s comments in Ladd v. Marshall, [1954] 1 W.L.R. 1489 (C.A.), at p. 1491, are applicable:It is very rare that application is made to this court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.
We have to apply those principles to the case where a witness comes and says: “I told a lie but nevertheless I now want to ‘tell the truth’”. It seems to me that the fresh evidence of such a witness will not as a rule satisfy the third condition. A confessed liar cannot usually be accepted as being credible. To justify the reception of the fresh evidence, some good reason must be shown why a lie was told in the first instance, and good ground given for thinking the witness will tell the truth on the second occasion. [Emphasis added.] 64 These comments, in my opinion, apply with equal force to the present case. Landow is akin to a “recanting liar” because he failed to tell his “truth” when he had the opportunity to do so on discovery and again when he declined to testify at trial. Although the determination in Ladd was made under the third branch of the test applied in that case, a branch that is absent from the two-part test in Scott, the application of the Scott test to the situation of a “recanting liar” has the same result in this case. Evidence which is not presumptively credible may fail to probably change the result under the first branch of the test in Scott. This is how the trial judge dealt with the affidavit evidence, and in my view he was correct in so doing. Further, it cannot be ignored that the trial decision imposing liability on Landow and AIM provided incentive for Landow to attempt to shift some responsibility to Kavana in order to share the liability of the corresponding damage award. The trial judge had also seen the evidence of Kavana in the first instance, which he found to be credible even in the face of a vigorous cross-examination.
65 The court in Scott mandated that both branches of the test to reopen a trial to admit fresh evidence must be met. Having failed to meet the first branch of the test, it is unnecessary to examine whether the precluded evidence in this case could have been obtained by the exercise of reasonable diligence. It is sufficient to say that that too is a matter largely within the discretion of the trial judge and, absent error by him, that finding should not be interfered with. . Holterman v. Fish
In Holterman v. Fish (Ont CA, 2017) the Sagaz test for setting aside an order, here a consent Order for discontinuance of an action, was applied by the court. The effect of the set-aside was to re-open the trial:[17] In determining whether there were exceptional circumstances to set aside the discontinuance, the motion judge applied the Sagaz test, which guides the application of r. 59.06(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for setting aside or varying an order due to fraud or facts arising or discovered after the order has been made. In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), [2001] 2 S.C.R. 983, the moving party sought to reopen a trial on the basis of fresh evidence. The Supreme Court ruled against the moving party, and cautioned at para. 61 of its decision that the discretion to reopen a trial should be exercised “sparingly and with the greatest care.”
[18] The test from Sagaz is often reduced to two questions: (1) whether the new evidence, if presented at trial, would probably have changed the result, and (2) whether the evidence could have been obtained before trial by the exercise of reasonable diligence. But more is involved. As this Court stated in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670 (CanLII), at para. 20, the test “includes considerations of finality, the apparent cogency of the evidence, delay, fairness and prejudice.” Appellate courts must also consider the importance of deferring to trial judges, who are “in the best position to decide whether, at the expense of finality, fairness dictates that the trial be reopened”: Sagaz, at para. 60; Mehedi, at para. 21.
[19] In my view, the factors set out in Sagaz provide an appropriate structure for determining whether to set aside a notice of discontinuance, with the caveat that the interest in finality may pose an even greater obstacle to setting aside a consent discontinuance than reopening a trial. An important aspect of a discontinuance on consent is that the parties, after considering their positions, made a joint decision to end the litigation. Although there may be exceptional circumstances where departure from such a decision will be justified, courts should not allow “significant and considered measures” to terminate litigation to be “lightly undone”: Yancey v. Neis, 1999 ABCA 272 (CanLII), 250 A.R. 19, at para. 25; Philipos v. Canada (Attorney General), 2016 FCA 79 (CanLII), 483 N.R. 328, at paras. 17-20.
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