Simon looking earnest in Preveza, Greece

Free Online Lawyer Consultations

Legal Guides
tenant / small claims / welfare (ontario works) / odsp / human rights / employment / consumer /
collection agencies / criminal injuries compensation / sppa (admin law) / animal cruelty / dogs & cats / wild animal law (all Canada)

home / about / testimonials / Conditions of Use


... what's this?

Civil Procedure - Re-opening Trial

Evidence - Fresh Evidence

Mehedi v. 2057161 Ontario Inc. (Job Success) (Ont CA, 2014)

In this case the Court of Appeal considered when a court, on being presented with fresh evidence unavailable at trial (and in this case even after appeals had been dismissed), should re-open a trial:
[16] In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII), 2001 SCC 59, [2001] 2 S.C.R. 983, the Supreme Court indicated that the discretion to reopen the trial is the trial judge’s. The trial judge is in the best position to decide whether fairness dictates that the trial be reopened. The trial judge should exercise his or her discretion to reopen the trial “sparingly and with the greatest care” so that “fraud and abuse of the [c]ourt’s processes” do not result: Sagaz, at para. 61.

[17] In Sagaz, however, the trial judge was asked to reopen the trial before the appeal, whereas in Mr. Mehedi’s case, the appeal has already been heard and determined.

[18] In Aristocrat v. Aristocrat 2004 CanLII 32256 (ON CA), (2004), 73 O.R. (3d) 275 (C.A.), the moving party’s appeal to the Court of Appeal and his application for leave to appeal to the Supreme Court of Canada had been dismissed, when subsequently he claimed he discovered fresh evidence showing that his wife and daughter had induced the Court of Appeal to dismiss his appeal by reason of “false, fabricated, fraudulent and perjured evidence”. He brought a motion in the Court of Appeal pursuant to rule 59.06(2)(a) to set aside the order dismissing his appeal. The matter was eventually heard by a panel of the court, which said at para. 9:
Based upon his oral submissions and his response to questions from the court, it is apparent that Mr. Aristocrat’s main concern is to re-open and set aside the original judgment of [the trial judge] as a judgment obtained by fraud. In order to accomplish this, he has moved under rule 59.06(2)(a). The Court of Appeal has no jurisdiction to hear such a motion. Such motions should be brought in the action before a judge of the Superior Court.
[19] The court in Aristocrat referred to an earlier case, R. v. Moura 2003 CanLII 46485 (ON CA), (2003), 172 C.C.C. (3d) 340 (Ont. C.A.), in which Morden J.A. held that a motion to set aside an order of the Superior Court, affirmed on appeal, on the basis of newly discovered evidence of fraud should be brought in the Superior Court.

Law Society Number #37308N / Website © Simon Shields 2005-2019