A Superior Court judgment is upheld by the Court of Appeal. The unsuccessful party then moves to re-open the case and introduce new evidence in light of having discovered new facts. Should the motion in this respect be brought in the Superior Court or the Court of Appeal? In his August 21, 2014 decision in Mehedi v. 2057161 Ontario Inc. (Job Success), Juriansz J.A. of the Ontario Court of Appeal answered this question – the motion must be brought in the Superior Court, and it is preferable, though not essential, that the motion be brought before the trial judge.

Mehedi had been the unsuccessful plaintiff in an action alleging fraud. After the Court of Appeal dismissed his appeal, he attempted to bring a motion before the trial judge to introduce new evidence, arguing that new evidence had come to light that impugned the defendants’ credibility as witnesses (the essential issue at trial). After unsuccessful procedural manoeuvring lasting over a year, and being unable to have the trial judge hear his motion, a Superior Court judge held that “directions should be sought from [the Court of Appeal] as to a motion to reopen the appeal for the introduction of newly discovered evidence.” Juriansz J.A. heard Mehedi’s motion for advice and direction “with respect to the court, the judge and the manner in which a motion to introduce new evidence after final judgment at trial has been made.”

Juriansz J.A. began by considering Rule 59.06(2) of the Rules of Civil Procedure:

A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

He then pointed out that in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983:

[16] … the Supreme Court indicated that the discretion to reopen the trial is the trial judge’s. The trial judge is in the best position to decide whether fairness dictates that the trial be reopened. The trial judge should exercise his or her discretion to reopen the trial “sparingly and with the greatest care” so that “fraud and abuse of the [c]ourt’s processes” do not result: Sagaz, at para. 61.

[17]       In Sagaz, however, the trial judge was asked to reopen the trial before the appeal, whereas in Mr. Mehedi’s case, the appeal has already been heard and determined.

In light of other cases, however, Juriansz J.A. was satisfied that even where the Court of Appeal has upheld the trial judge’s decision, a motion to re-open the case and introduce new evidence must be brought in the trial court, and that it is preferable – though not essential – that it be brought before the same judge who heard the trial:

[20]      [t]he rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined. An appeal merely concludes there is no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made. [Emphasis added.]

[21]      While a motion under rule 59.06(2) must be brought in the Superior Court, it need not be brought before the trial judge. This is made clear by rule 37.14(4), which provides:

A motion under…any…rule to set aside, vary or amend an order [including judgment] of a judge may be made,

(a) to the judge who made it, at any place; or

(b) to any other judge, at a place determined in accordance with rule 37.03….

[22]      Rule 37.03 merely requires that the motion be brought in the county where the proceeding was commenced or to which it has been transferred.

[26]       While the law does not require the trial judge whose judgment is at issue to hear the rule 59.06(2) motion, it is preferable for the trial judge to do so. The trial judge is already familiar with all of the evidence at trial, and is well-suited to expeditiously determine whether the alleged fraud or the new evidence requires the trial judgment to be set aside.

[29]       In this case, Mr. Mehedi seeks to undermine the credibility findings made by the trial judge with the new evidence. However, as the trial judge has already declined to hear the motion, Mr. Mehedi must bring his motion before another judge in motions court in the ordinary way.