Test to Re-open Case at Trial

The decision in Loye v. Bowers, 2019 ONSC 7143, involved a jury trial in a personal injury action. Through inadvertence, the plaintiff did not enter his income tax returns into evidence before closing his case. The plaintiff brought a motion to re-open his case.

Justice J.R. Turnbull took into account the factors outlined by the Court of Appeal in Malkov v. Stovichek-Malkov, [2018] ONCA 620, wherein the test applied in Catholic Children’s Aid Society of Toronto v. M.R., [2014] ONCJ 762, was approved.

In particular, the factors to consider on a motion to re-open a case are:

• At what stage of the trial is the motion made?
• Why was evidence not adduced during the party’s case? Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party’s attention, despite diligent earlier efforts?
• What is the prejudice to the defendant? A defendant might have conducted his or her case differently if he or she had known and had an opportunity to investigate the evidence which is the subject of the motion.
• Can any prejudice be remedied in costs?
• How would a re-opening of the case affect the length of the trial? How much evidence would have to be revisited?
• What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or non-controversial point? Does it merely “shore up” evidence led in chief?
• Is the proposed new evidence presumptively credible?

Justice Turnbull permitted the plaintiff to re-open his case. His Honour indicated that it would not take very long to recall the plaintiff to identify the income tax returns so that they could be entered as exhibits. Further, the defendant would have the right to fully cross-examine the plaintiff on the documents. Thus, the defendant would not be significantly or irreparably prejudiced.

In addition, the evidence was arguably very material. The income tax returns were relevant to the plaintiff’s claim for loss of earning capacity. There was a significant deficiency in the other evidence provided to the jury in support of the claim for loss of earning capacity.