9.13: Re-opening case

Case Summary

The Plaintiff, Lall applied to vary a prior Judgment which found that Lall was in breach of the Election Finances and Contributions Disclosure Act (the “Act”), and was therefore banned from pursuing public office for a period of five years. Justice Tilleman confirmed that the Judgment had not yet been entered. His Lordship considered Rule 9.13 which provides the criteria for varying a Judgment or Order and noted that before re-opening a decision, the Court must be satisfied that there is good reason to do so. The test requires that the Court consider: whether the evidence, if presented at trial, have changed the result; and could the evidence have been obtained before the conclusion of the trial by the exercise of reasonable diligence? Tilleman J. stated that, under Alberta’s Rule 9.13 the criteria for re-opening a Judgment were as follows:

1. Could the evidence have been obtained earlier if due diligence had been observed? That the evidence was available to the applicant but not looked for because it was hard to access and because other matters pressed, is fatal to the Application.

2. Is the evidence credible?

3. Would the evidence have been practically conclusive in producing the opposite result to that earlier pronounced? A debatable matter of opinion is not sufficient. Nor is controvertible evidence which would open up an extremely complex and convoluted exercise.

4. Is the evidence in its present form admissible under the ordinary rules of evidence?

Justice Tilleman reviewed the new evidence introduced by Lall including Lall’s newly disclosed and self-diagnosed depression and noted that, in the usual course, where physical or mental health matters are in issue, evidence from an appropriate health professional is expected. However, the Province had changed the Act following Lall’s initial Application. Though this legislative change was not retroactive, Lall would not be offside of the Act as presently in force. Given the apparent legislative direction on the matter, and in the absence of a position taken by the Respondent Chief Electoral Officer, the Court granted Lall’s Application to vary the Judgment with the result that Lall had made his financial disclosure filing in time.

View CanLII Details