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Review - Re-Opening - Family. Iredale v. Dougall
In Iredale v. Dougall (Ont CA, 2025) the Ontario Court of Appeal dismissed a family law appeal.
Here the court considered Sagaz, a leading re-opening case:[56] The trial judge considered and dismissed the motion. He declined to exercise his discretion to re-open the trial after considering the test set out in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983. While the trial judge was unable to say whether the evidence, if presented at trial, would have probably changed the result at trial on the record before him, he did find that the evidence existed at all material times and could have been adduced during the trial with reasonable diligence: Sagaz, at para. 20. Moreover, the decision was by then 15 months old, Kirk could and should have addressed the issue as soon as or reasonably soon after discovering the omission, Carol would be prejudiced, it was not in the interests of justice, the integrity of the trial process was not at risk, and no exceptional circumstances existed to warrant re-opening the trial.
[57] Kirk submits that the trial judge erred in law by imposing a strict due diligence requirement with respect to the re-opening of the evidence to include the September 2, 2018 appraisal. Kirk indicates that, without the additional appraisal, the trial judge had no expert evidence on the value of the matrimonial home and that the trial judge was left to engage in a rough estimation.
[58] Kirk argues that the due diligence requirement should have been relaxed, including where necessary due to a lack of diligence by counsel as was the case here, rather than a party. He relies upon Castlerigg Investments Inc. v. Lam (1991), 1991 CanLII 7355 (ON SC), 2 O.R. (3d) 216 (Gen. Div.), para. 9, and Degroote v. Canadian Imperial Bank of Commerce (1999), 1999 CanLII 4115 (ON CA), 121 O.A.C. 327 (Ont. C.A.), at para. 9, for the position that the due diligence requirement can be relaxed in order to prevent a miscarriage of justice, and that a lack of diligence by counsel should not serve to perpetuate an injustice.
[59] This was a discretionary decision on the part of the trial judge. The case law Kirk relies upon emphasizes the discretionary nature of this decision. The trial judge considered the relevant factors. The decision to relax the diligence requirement was up to the trial judge. He chose not to do so. His decision is entitled to deference: Sagaz, at para. 60.
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