The Applicants applied to reopen a Hearing from a previous Action (the “Prior Action”), recall the Prior Action’s central witness for further cross-examination, and to have the entirety of the documents listed in the Certified Record of Proceedings in the Prior Action (the “Documents”) admitted as evidence in a subsequent case.

The Applicants relied on Rule 9.13. Rule 9.13 provides that, at any time before a Judgment or Order is entered or on Application, the Court may vary it, and if the Court is satisfied that there is good reason to do so, the Court may hear more evidence and change or modify its Order or Judgment or its reasons.

The Court noted that the onus of satisfying Rule 9.13 is on the Applicants, and that they must establish that there are exceptional circumstances to justify the reopening of the Hearing. The Court added that the Court’s discretion to do so must be exercised sparingly and with the utmost care. The Court provided the test for whether to admit further evidence or to vary a pronounced judgment or order: (1) could the evidence have been obtained earlier if due diligence had been observed?; (2) is the evidence credible?; (3) would the evidence have been practically conclusive in producing the opposite result to that earlier pronounced?; and (4) is the evidence in its present form admissible under the ordinary rules of evidence? (CZ v RB, 2019 ABCA 445).

The Court added that, in deciding whether there is good reason to hear more evidence and change its Order, the threshold for a Court to exercise its discretion should be high to avoid Applications that are in fact a ‘second kick at the can’. A Court should also ensure that the proposed errors to be corrected are objectively demonstrable (ex. an incorrect statement of law), and that Rule 9.13 not be a vehicle for seeking consideration of a judgment call (Aubin v Petrone, 2020 ABQB 708). The Court emphasized that the need for finality and certainty in legal proceedings is a factor to be considered by a Court in exercising its discretion under Rule 9.13.

In dismissing the Application, the Court found that, amongst other things: (1) the Applicants failed to observe reasonable due diligence with respect to the Documents that were publicly available, and that the onus was not on the Respondents to disclose the Documents; (2) the Documents, properly characterized, were not relevant; (3) the Applicants’ Application was an attempt at a ‘second kick at the can’; (4) new evidence proffered by the Applicants in support of the Application to reopen the hearing and to recall the central witness for further cross-examination would not impeach the credibility of that witness, and would not be determinative in changing the outcome of the Prior Action; and (5) the submissions of the Applicants were based on a mischaracterization of the Documents and the central witness’ evidence from the Prior Action.