Kilitzoglou v. Curé Estate et al, 2015 ONSC 369 (CanLII)
On January 19, 2015, Justice McKelvey of the Superior Court of Justice in Newmarket released the Court’s decision in relation to a motion brought by a successful Applicant to reopen the trial of the Application after the Court rendered its decision, but before judgment was entered. The successful Applicant sought, inter alia, to adduce fresh evidence which was available at the time of trial.
Facts
Ms. Helen Kilitzoglou (the Applicant) commenced an Application in 2008 seeking financial remedies under the Succession Law Reform Act in relation to her common law relationship with Mr. Curé, who died in April 2007. The Applicant sought several grounds of relief, including support, an order transferring Mr. Curé’s interest in a property in Vaughan at which the couple had lived, or in the alternative, an order for the partition and sale of the property, an order that the proceeds of a Transamerica life insurance policy taken out by Mr. Curé before his death be paid to the Applicant, an order to determine the validity of the deceased’s last Will, an order removing the deceased’s daughters, Tanya and Shannon Curé as Estate Trustees of Mr. Curé’s Estate, a declaration that the cohabitation agreement was void, as well as a number of other claims.<sup>1</sup>
Subsequent to the release of the written Reasons for Judgment, but before the parties had taken out the Judgment, the Applicant brought a motion seeking an order to reopen the evidence at trial to permit further evidence on repairs needed to the home in Vaughan, which she asserted should be paid by the Estate. She also sought to vary the Reasons for Judgment so as to allow expenses as set forth in her affidavits filed in support of the motion to be included in the judgment.<sup>2</sup>
The Court declined to permit the reopening of the trial of the Application to adduce fresh evidence. In dismissing this aspect of the motion, Justice McKelvey stated the following:
During her evidence at trial, Ms. Kilitzoglou spent a considerable amount of time describing the state of her home and the defects which required repair. Photos of the home highlighting many of the defects which required repair were introduced as exhibits at trial. In addition to providing receipts for expenses which had been paid by Ms. Kilitzoglou, she also introduced estimates for work on the home which had not yet been performed but which required repair. In particular, these expenses included an estimate for window replacement, dated January 22, 2010, in the amount of $27,218 and an estimate from Avenue Road Roofing, dated November 24, 2009, for roof replacement where the cost of work was estimated at $32,401.14. The Estate obtained another roofing estimate, dated December 2009, which estimated the total cost for a roof replacement at $14,545.75.
[14] Following judgment, Ms. Kilitzoglou obtained updated estimates for the cost of these repairs.
[…]
[15] While my Reasons for Judgment were released on February 14, 2014, the formal judgment has not been taken out by the parties. There is, therefore, some discretion to allow further evidence to be adduced. With respect to the applicable legal principles governing the admission of new evidence, Ms. Kilitzoglou relies upon the decision in Matzelle Estate v. Father Bernard Prince Society of the Precious Blood, [1996] O.J. No.2605. In that decision, the court considers the principles to be applied if a party moves to reopen the evidence at trial after reasons are released, but before judgment is issued. The court in that case refers to an earlier decision in Qit Fer et Titane Inc. v. Upper Lakes Shipping Company Ltd., (1991), 3 O.R. (3d) 165 (Gen. Div.) where the court stated certain principles as follows:
(a) Until judgment has been entered, a trial judge has discretion to reopen a trial and hear fresh evidence;
(b) In exercising such discretion, the judge should be guided by the twofold test: that the evidence would probably have changed the result at trial and it could not have been discovered by reasonable diligence;
(c) Where justice demands it and particularly where fraud is involved or the court may have been deliberately misled, a judge is justified in departing from the diligence requirement in order to prevent a miscarriage of justice;
(d) The power should be exercised sparingly. The court should discourage unwarranted attempts to bring forward evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant, after discovering the effect of a judgment, to re-establish a broken down case with the aid of further proof;
(e) Once a litigant has obtained judgment, he is entitled not to be deprived of it without very solid grounds.
[16] In the Matzelle Estate case, the court also states that a trial judge does have the discretion to reopen a hearing to allow new evidence, whether or not the evidence could have been discovered by the exercise of reasonable diligence prior to trial, but that this discretion should only be exercised in the clearest of cases and only to prevent a miscarriage of justice.
Justice McKelvey noted, however, that there is good reason to doubt whether the court’s decision in Matzelle Estate remains applicable today.<sup>3</sup> In 671122 Ontario Ltd. V. Sagaz Industries Canada Inc.,<sup>4</sup> the Supreme Court considered this issue, citing with approval the decision of Lord Denning in Ladd v. Marshall,<sup>5</sup> in which Lord Denning states:
It is very rare that application is made to this court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.
Justice McKelvey concludes that “[t]he Supreme Court therefore appears to support the position that before permitting fresh evidence to be introduced, the moving party must show that the evidence could not have been obtained with reasonable diligence for use at the trial, as well as demonstrating that the new evidence would have an important influence on the result of the case.”[6]
Ultimately, Justice McKelvey found that the Applicant chose to rely, at trial, on estimates on the cost of the repair of the roof and for the replacement of windows which were several years old and which were not updated before trial, but which could, with reasonable diligence, have been adduced at trial. Moreover, the Applicant was aware of the deficiencies in the house property which would require repair and opted not to address these issues during the trial of the matter.[7]
Significantly, Justice McKelvey also noted that to open up the trial again and to permit the Applicant to adduce new evidence would correspondingly permit the Respondent to adduce further evidence, thus lengthening an already long and complicated trial.
Commentary
No doubt the efficacy of our legal system requires finality in the determination of matters. Litigants cannot exercise carte blanche to adduce further evidence after a court has rendered its decision on a matter if litigation is to function efficiently and effectively. Similar to the requirement in summary judgment motions in Ontario, that litigants “lead trump or risk losing”, it seems a fair and appropriate principle that at the trial of a matter on its merits, a Court should be able to render its decision with finality on the totality of the evidence before it, and moreover, that the litigants’ failure to adduce evidence at trial relevant to the relief sought by the litigants should be the litigants’ own risk, and to their own detriment. Without this principle, trials might never end, as litigants on each side may, after learning of the judge’s decision, engage in an “arms race” to adduce further evidence, seeking to alter the judge’s decision and “trump” their opponent’s evidence.
However, this case raises the question of the obligation on litigants to file up-to-date evidence on an ongoing basis to ensure the relief they seek in litigation is consistent with the realities of inflation and other economic changes which occur over time. Given the duration of most litigation matters in the present day, it is clear that a litigation matter may “outlive” the relevance and/or accuracy of financial evidence filed in the course of the litigation as evidence. In this case, the estimates which were the subject of the motion were obtained between 2009 and 2010. Following judgment, the Applicant obtained updated estimates, and though we are not so informed in the case, presumably, the Applicant was shocked to learn that 5-6 years later, the estimates were no longer accurate.
Would it not, however, present a practical problem for litigants if the documentary evidence relied on in litigation to prove financial aspects of a case were constantly subject to updates and/or changes, thus necessitating responding documentary evidence and discovery obligations? Perhaps there is no answer to this apparent problem. What is clear, though, is that litigants may not receive what they expect to receive in the context of litigation relating to financial matters in today’s dynamic and volatile economy. What is accurate evidence one day may be inaccurate the next.
The lasting take-away lesson from this case is as follows: Litigants, check the expiry date on your evidence. If trial concludes and your evidence has “turned”, you won’t be allowed to introduce something fresh if you could have raised it at trial, but didn’t. Much like the effect of rotten food on ones’ digestive system, the effect of “turned” evidence for litigants may be unpleasant, unexpected, and difficult to stomach.
—
1. Kilitzoglou v. Curé Estate et al, 2015 ONSC 369, at para. 1 [Curé].
2. Ibid., at para. 2.
3. Curé, at paras. 13-17.
4. [2001] S.C.J. 61.
5. [1954] 1 W.L.R. 1489 (CA).
6. Curé at para. 19.
7. Ibid.,at para. 21.
—
This case commentary was originally published in the Whaley Estate Litigation March 2015 Newsletter. To sign up for our newsletter, please click here.
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Written by: WEL Partners
Posted on: April 15, 2015
Categories: Commentary
Kilitzoglou v. Curé Estate et al, 2015 ONSC 369 (CanLII)
On January 19, 2015, Justice McKelvey of the Superior Court of Justice in Newmarket released the Court’s decision in relation to a motion brought by a successful Applicant to reopen the trial of the Application after the Court rendered its decision, but before judgment was entered. The successful Applicant sought, inter alia, to adduce fresh evidence which was available at the time of trial.
Facts
Ms. Helen Kilitzoglou (the Applicant) commenced an Application in 2008 seeking financial remedies under the Succession Law Reform Act in relation to her common law relationship with Mr. Curé, who died in April 2007. The Applicant sought several grounds of relief, including support, an order transferring Mr. Curé’s interest in a property in Vaughan at which the couple had lived, or in the alternative, an order for the partition and sale of the property, an order that the proceeds of a Transamerica life insurance policy taken out by Mr. Curé before his death be paid to the Applicant, an order to determine the validity of the deceased’s last Will, an order removing the deceased’s daughters, Tanya and Shannon Curé as Estate Trustees of Mr. Curé’s Estate, a declaration that the cohabitation agreement was void, as well as a number of other claims.<sup>1</sup>
Subsequent to the release of the written Reasons for Judgment, but before the parties had taken out the Judgment, the Applicant brought a motion seeking an order to reopen the evidence at trial to permit further evidence on repairs needed to the home in Vaughan, which she asserted should be paid by the Estate. She also sought to vary the Reasons for Judgment so as to allow expenses as set forth in her affidavits filed in support of the motion to be included in the judgment.<sup>2</sup>
The Court declined to permit the reopening of the trial of the Application to adduce fresh evidence. In dismissing this aspect of the motion, Justice McKelvey stated the following:
During her evidence at trial, Ms. Kilitzoglou spent a considerable amount of time describing the state of her home and the defects which required repair. Photos of the home highlighting many of the defects which required repair were introduced as exhibits at trial. In addition to providing receipts for expenses which had been paid by Ms. Kilitzoglou, she also introduced estimates for work on the home which had not yet been performed but which required repair. In particular, these expenses included an estimate for window replacement, dated January 22, 2010, in the amount of $27,218 and an estimate from Avenue Road Roofing, dated November 24, 2009, for roof replacement where the cost of work was estimated at $32,401.14. The Estate obtained another roofing estimate, dated December 2009, which estimated the total cost for a roof replacement at $14,545.75.
[14] Following judgment, Ms. Kilitzoglou obtained updated estimates for the cost of these repairs.
[…]
[15] While my Reasons for Judgment were released on February 14, 2014, the formal judgment has not been taken out by the parties. There is, therefore, some discretion to allow further evidence to be adduced. With respect to the applicable legal principles governing the admission of new evidence, Ms. Kilitzoglou relies upon the decision in Matzelle Estate v. Father Bernard Prince Society of the Precious Blood, [1996] O.J. No.2605. In that decision, the court considers the principles to be applied if a party moves to reopen the evidence at trial after reasons are released, but before judgment is issued. The court in that case refers to an earlier decision in Qit Fer et Titane Inc. v. Upper Lakes Shipping Company Ltd., (1991), 3 O.R. (3d) 165 (Gen. Div.) where the court stated certain principles as follows:
(a) Until judgment has been entered, a trial judge has discretion to reopen a trial and hear fresh evidence;
(b) In exercising such discretion, the judge should be guided by the twofold test: that the evidence would probably have changed the result at trial and it could not have been discovered by reasonable diligence;
(c) Where justice demands it and particularly where fraud is involved or the court may have been deliberately misled, a judge is justified in departing from the diligence requirement in order to prevent a miscarriage of justice;
(d) The power should be exercised sparingly. The court should discourage unwarranted attempts to bring forward evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant, after discovering the effect of a judgment, to re-establish a broken down case with the aid of further proof;
(e) Once a litigant has obtained judgment, he is entitled not to be deprived of it without very solid grounds.
[16] In the Matzelle Estate case, the court also states that a trial judge does have the discretion to reopen a hearing to allow new evidence, whether or not the evidence could have been discovered by the exercise of reasonable diligence prior to trial, but that this discretion should only be exercised in the clearest of cases and only to prevent a miscarriage of justice.
Justice McKelvey noted, however, that there is good reason to doubt whether the court’s decision in Matzelle Estate remains applicable today.<sup>3</sup> In 671122 Ontario Ltd. V. Sagaz Industries Canada Inc.,<sup>4</sup> the Supreme Court considered this issue, citing with approval the decision of Lord Denning in Ladd v. Marshall,<sup>5</sup> in which Lord Denning states:
It is very rare that application is made to this court for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.
Justice McKelvey concludes that “[t]he Supreme Court therefore appears to support the position that before permitting fresh evidence to be introduced, the moving party must show that the evidence could not have been obtained with reasonable diligence for use at the trial, as well as demonstrating that the new evidence would have an important influence on the result of the case.”[6]
Ultimately, Justice McKelvey found that the Applicant chose to rely, at trial, on estimates on the cost of the repair of the roof and for the replacement of windows which were several years old and which were not updated before trial, but which could, with reasonable diligence, have been adduced at trial. Moreover, the Applicant was aware of the deficiencies in the house property which would require repair and opted not to address these issues during the trial of the matter.[7]
Significantly, Justice McKelvey also noted that to open up the trial again and to permit the Applicant to adduce new evidence would correspondingly permit the Respondent to adduce further evidence, thus lengthening an already long and complicated trial.
Commentary
No doubt the efficacy of our legal system requires finality in the determination of matters. Litigants cannot exercise carte blanche to adduce further evidence after a court has rendered its decision on a matter if litigation is to function efficiently and effectively. Similar to the requirement in summary judgment motions in Ontario, that litigants “lead trump or risk losing”, it seems a fair and appropriate principle that at the trial of a matter on its merits, a Court should be able to render its decision with finality on the totality of the evidence before it, and moreover, that the litigants’ failure to adduce evidence at trial relevant to the relief sought by the litigants should be the litigants’ own risk, and to their own detriment. Without this principle, trials might never end, as litigants on each side may, after learning of the judge’s decision, engage in an “arms race” to adduce further evidence, seeking to alter the judge’s decision and “trump” their opponent’s evidence.
However, this case raises the question of the obligation on litigants to file up-to-date evidence on an ongoing basis to ensure the relief they seek in litigation is consistent with the realities of inflation and other economic changes which occur over time. Given the duration of most litigation matters in the present day, it is clear that a litigation matter may “outlive” the relevance and/or accuracy of financial evidence filed in the course of the litigation as evidence. In this case, the estimates which were the subject of the motion were obtained between 2009 and 2010. Following judgment, the Applicant obtained updated estimates, and though we are not so informed in the case, presumably, the Applicant was shocked to learn that 5-6 years later, the estimates were no longer accurate.
Would it not, however, present a practical problem for litigants if the documentary evidence relied on in litigation to prove financial aspects of a case were constantly subject to updates and/or changes, thus necessitating responding documentary evidence and discovery obligations? Perhaps there is no answer to this apparent problem. What is clear, though, is that litigants may not receive what they expect to receive in the context of litigation relating to financial matters in today’s dynamic and volatile economy. What is accurate evidence one day may be inaccurate the next.
The lasting take-away lesson from this case is as follows: Litigants, check the expiry date on your evidence. If trial concludes and your evidence has “turned”, you won’t be allowed to introduce something fresh if you could have raised it at trial, but didn’t. Much like the effect of rotten food on ones’ digestive system, the effect of “turned” evidence for litigants may be unpleasant, unexpected, and difficult to stomach.
—
1. Kilitzoglou v. Curé Estate et al, 2015 ONSC 369, at para. 1 [Curé].
2. Ibid., at para. 2.
3. Curé, at paras. 13-17.
4. [2001] S.C.J. 61.
5. [1954] 1 W.L.R. 1489 (CA).
6. Curé at para. 19.
7. Ibid.,at para. 21.
—
This case commentary was originally published in the Whaley Estate Litigation March 2015 Newsletter. To sign up for our newsletter, please click here.
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