This Decision arises from an Application to re-open a prior Decision pursuant to Rule 9.13.

In an earlier Application, the Applicant had applied for, among other things, an Order setting aside various general security agreements between the Respondent and related parties on the basis that the agreements constituted fraudulent preferences pursuant to the Fraudulent Preferences Act, RSA 2000, c F-24. The Applicant was unsuccessful in securing the requested relief, as it was unable to demonstrate that it was a creditor, as required by the applicable legislation. Later, the Applicant sought to re-open the Application on the basis of further evidence capable of demonstrating that it was in fact a creditor. The formal Judgment associated with the prior Decision had not yet been signed or entered.

In assessing the Application to re-open, the Court noted that, while empowered to re-open and reconsider its Decision, the weight of jurisprudence held that such power should be exercised sparingly and with great care. The Court went on to note several considerations to be observed in making its determination: (1) would there be a miscarriage of justice without the reopening?; (2) is the applicant trying to raise a new issue which [it] could have raised earlier?; (3) has the re-opening been sought based on new facts, not merely new argument? (4) has any other party relied on the Order to its detriment? (5) does the Applicant's new factual stance contradict its earlier factual assertions or evidence? Among these, the Court observed that the fundamental consideration is avoidance of a miscarriage of justice. The Court also noted the parties’ agreement that the Decision should be re-opened if the Appellant could satisfy the test for admission of new evidence: i.e. that the evidence could not have made available at trial through due diligence and that the evidence would, if adduced in the original Application, probably have changed the result.

Turning to the specific evidence, the Court found that the new evidence would likely have changed the result; however, it also found that the evidence was available at the time of the original Application. Noting also that the assessment of whether a miscarriage of justice has occurred requires a consideration of the parties’ mutual right to finality, the Court held that the case should not be re-opened notwithstanding the new evidence.