In a recent decision, the British Columbia Supreme Court examined the question of whether a decision reached at trial could be reopened and changed without an appeal taking place on the basis of new evidence having been discovered after the trial had ended.
K.F.P. v. D.J.P 2004 BCSC 466 was a family law trial involving the division of the parties’ assets. The husband had brought a significant amount of money into the marriage, which came from money he had saved while working in the dangerous and lucrative field of mine blasting before the marriage. After the marriage, the husband obtained a high paying job as an accident investigator with the Workers Compensation Board.
The wife came into the marriage with very little in the way of assets and no substantial education beyond high school. The parties’ had a child and the wife remained in the home, looking after the child and the household. The wife did college upgrading of her skills and obtained employment as an administrative assistant during the marriage in a secure and relatively well paying position. The parties were together a total of 17 years.
The parties’ assets at the date of trial were $630,000.00. The trial judge, while recognizing that the husband had brought most of the assets in to the marriage, still found that an equal division of assets was appropriate given the length of the marriage and the respective roles of the parties during the marriage. The judge found one exception however and these were two term deposits, which both parties mistakenly agreed had been gained though an inheritance left from the husband’s mother. The judge therefore apportioned these assets 75% in favour of the husband.
Two months after the trial judge’s written reasons were delivered to the parties, the wife advised the court through her counsel that about a week after the trial had ended she found a ledger book in her house that showed that the money which had gone into the two term deposits had actually come out of the parties‚Äô joint account. The net result of this information would have meant that the wife may have received an addition $25,000.00 in the division of assets, as the term deposits would have been split equally as well. The wife applied to have the trial reopened based on the discovery of this new evidence.
The leading authority for this kind of application is Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257 (B.C.C.A.). In this decision, MacDonald J.A. held at page 295 that:
It is, I think, a salutary rule to leave unfettered discretion to the trial Judge. He 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. If the power is not exercised sparingly and with the greatest care, fraud and abuse of the Court’s processes would likely result.
The Court also held in Clayton that it was better for a trial judge to deal with a question of newly discovered evidence rather than the appeal court because of the fact that the trial judge better knows the factors that influenced his decision and could more readily determine the weight that the new evidence should be given in the context of the trial.
Also cited was the recent decision of the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 where the Court sanctioned the following two part test:
(1) Would the evidence, if presented at trial, probably have changed the result?
(2) Second, could the evidence have been obtained before trial by the exercise of reasonable due diligence?
The Supreme Court emphasized the principle that [it is] the trial judge who is in the best position to decide whether, at the expense of finality, fairness dictates that the trial will be reopened”.
The trial judge in this case held that it would not be in the interests of fairness and justice to reopen the trial on the basis of the new evidence presented by the wife. The wife had waited until she had received the written reasons of the judge, some two or three months down the road before she brought the new evidence to light even though she stated that she had found the week after the trial ended.
The trial judge noted that throughout the course of the litigation, the wife had been less than fully cooperative in disclosing financial documents that were in her possession and that had she complied with the requests for disclosure more properly in the past, she may have discovered the ledger at an earlier time. Thus it was a failure in due diligence. Last, the trial judge noted that the litigation had spanned three years and undergone an already lengthy and expensive trial and that it was not in the interest of justice to reopen the trial given the amount of money that was at stake.
A trial can be reopened if there is new evidence discovered after the trial that would have affected the judge’s decision. The circumstances that weigh in the favour of a reopening are as follows:
1. The evidence was discovered relatively soon after the decision at trial had been made.
2. The discovery of the evidence was made known to all parties and particularly the judge very shortly after it was discovered.
3. The party discovering the evidence did not wait to disclose the evidence until written reasons were released to determine whether the decision of the judge was in their favour.
4. The evidence is not something that the parties reasonably should have been able to discover or obtain either before or during trial, i.e. there was due diligence on the part of the party discovering the evidence.
5. The evidence would have a material affect on the outcome of the trial.
6. The expense of reopening the trial is outweighed by the potential result through the introduction of the new evidence.
7. The party presenting the new evidence has come to the Court with relatively clean hands, particularly in regards to the disclosure of evidence.
8. The interests of justice would be served by reopening the trial, i.e. an unfairness would result or be seen to result from the failure of the trial judge to reopen the trial.
It just goes to show that not all decisions are final.
