What are the principles that apply to an application to reopen prior to judgment?

British Columbia, Canada


The following excerpt is from J.H.F. v. S.H.F.N., 2015 BCSC 349 (CanLII):

The principles that apply to an application to reopen prior to judgment were recently summarized by Madam Justice Garson in Moradkhan v. Mofidi, 2013 BCCA 132 at para. 31 as follows: • it is generally speaking in the interests of justice to consider that a trial is complete when each side has closed their case and the judge has delivered his or her judgment; • a judge’s unfettered discretion to reopen a trial should be exercised with restraint; • a party may not use the rule to re-argue, re-cast, or re-state his or her case, rather the rule is available to remedy what might otherwise be a substantial injustice; • it is not intended that a party should be able to lead substantial new evidence, nor does the rule generally permit the leading of new expert evidence; • the reasons that the evidence was not led or submissions not made in the first place may be relevant to the exercise of the judge’s discretion, particularly where the failure to do so in the first place was a considered or pragmatic decision; and • the discretion should only be exercised if the reception of the new evidence would probably change the result of the trial.

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