Following the conclusion of evidence during a family Trail, but prior to the Court issuing a Judgment or Decision, the Applicant’s counsel discovered a new, relevant document.

The Applicant applied to reopen the Trial under Rule 9.13(b). The Respondent relied on R v Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759 (“Palmer”), arguing that the Application should be dismissed as the impugned document had been provided to the Applicant’s counsel prior to the Trial, and therefore could have been discovered with due diligence.

In reviewing Rule 9.13, the Court noted that the Rule is largely aimed at an Appeal Court’s exercise of its jurisdiction rather than that of a Trial Judge. The case law advanced with respect to Rule 9.13 considered situations where an Application was brought after a Judgment or Decision had been rendered. Despite this, the Court found the principles from those cases helpful. Justice Berkov reasoned that a Trial Judge exercising discretion to re-open the Trial must emphasize fairness in considering whether new evidence is credible and material, and whether there is a risk of a miscarriage of justice. The Justice found that while the Palmer criterion was relevant, Her Ladyship’s discretion as Trial Judge invoked a broader analysis.

Ultimately, the Court noted that the impugned document had been inaccurately referenced, which misled the Applicant into not considering the impugned document’s relevance. The Court granted the Application, but allowed the Respondent to provide further evidence to explain the impugned document.