On the date of separation, the husband owned a 1/16th interest in a property in the Gaza Strip. The wife’s expert prepared a report stating that the value of this property was $560,000 USD on the date of separation. This same expert had also been retained by the husband and authored a second report about two months later. In this report, the property was stated to have been worth $400,000 USD. The trial was then adjourned so that the parties could retain new experts. The wife’s new expert valued the property at $600,000 USD and the husband’s new expert valued it at approximately $300,000 USD. While the decision was under reserve, the wife learned that the husband’s brother who also had a small interest in the Gaza Property had sold his interest and based on that sale price, the husband’s interest would have been valued at $500,000 USD.
The wife brought a motion to reopen the trial to allow her to introduce the evidence of this sale because she argued that it would assist the Court in determining the value of the husband’s interest. The husband opposed this motion because he claimed that since the sale was in 2021, it would not help the Court in determining the value of his property at the date of separation in 2016. The test for dealing with a request to reopen a trial was set out in Scott v Cook 1970 CarswellOnt 253 (H.C). The test was articulated as a party seeking to reopen a trial based on newly discovered evidence must demonstrate that the evidence, they seek to produce is such that “if it had been presented at trial, it would probably have changed the result” and that the evidence “could not have been obtained by reasonable diligence before the trial”. The Supreme Court reaffirmed this decision in 67122 Ontario Ltd. V. Sagaz Industries Canada Inc. 2001 Carswell Ont 3357 (S.C.C.). The SCC also clarified that the discretion to reopen a trial must be used “sparingly and with the greatest care” so that “fraud and abuse of the Court’s processes’ do not result”.
However, the test as set out in Scott v Cook is not directly applicable in the case at bar. In this case, the trial had concluded but a decision had not yet been released. Justice Nakatsuru determined in Brasseur v York, 2019 Carswell Ont 10838 (S.C.J.) that “where a decision has not yet been rendered, the need for finality does not require the evidence to have ‘probably’ changed the result if it had been presented at trial. I emphasize that no decision as yet been made. There is no “result” to speak of…provided a judge finds it in the interests of justice to do so, the judge may properly exercise the discretion to receive fresh evidence.”
Applying these principles to the current situation, Justice Smith was satisfied that the wife had moved sufficiently quickly when this evidence came to her attention and that the husband would not be prejudiced by this decision.
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