BAINS v ADAM, 2023 ABKB 491


8.17: Proving facts
9.13: Re-opening case

Case Summary

Yamauchi J. denied the Plaintiff’s Application to enter opinion evidence through an Affidavit after the conclusion of the Trial.

Yamauchi J. cited with approval Heritage Freehold Specialists & Co v Montreal Trust Co (1997), 208 AR 241, 52 Alta LR (3d) 354 for the proposition that to enter such evidence, a litigant should apply for leave under Rule 8.17 before the Trial as opposed to at the Trial, let alone after the Trial has been completed. Moreover, allowing the Plaintiff to enter opinion evidence through an Affidavit would contravene Rule 8.17, as the Defendants would have no opportunity to cross-examine the authors of the various exhibits.

Yamauchi J. cited Aubin v Petrone, 2020 ABQB 708 for the propositions that a Court may consider a Rule 9.13 Application if it is satisfied there is a good reason to do so; and in deciding whether to exercise this discretion, a Court should keep in mind a number of factors, including: (1) the desirability of avoiding unnecessary and costly Appeals; (2) the desirability of the Appeal Court having a fully developed factual and legal record; (3) the need for finality and certainty in legal proceedings; (4) that errors to be corrected should be objectively demonstrable (such as an incorrect statement of law or interpretation of a contract which all parties agree is incorrect); (5) the Rule is not a vehicle for seeking reconsideration of a judgment call; and (6) the threshold for a Court to exercise its discretion should be high to avoid Applications which are in reality, a “second kick at the can”.

Citing CZ v RB, 2019 ABCA 445, Yamauchi J. continued to comment that Rule 9.13 should be used sparingly, and that it is “not an occasion for the losing party to advance new argument which they did not think of before”. Rule 9.13 is never intended as a vehicle to shore up evidential gaps. The test for whether to admit further evidence on the Application to vary a pronounced Judgment is similar to the rules for receiving new evidence on Appeal to the Court of Appeal.

Yamauchi J. held that the exhibits that the Plaintiff had available but chose not to enter as evidence at Trial were effectively new evidence. The Plaintiff failed or refused to put that evidence before the Court or call the authors of the evidence, nor did he provide “good reason” why the Court should accept such evidence post-Trial. As such, the Plaintiff’s Application to enter such evidence through an Affidavit after the conclusion of the Trial was dismissed.

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