COURT OF APPEAL FOR ONTARIO

CITATION: Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670

DATE: 20151006

DOCKET: C59772

Cronk, Lauwers and van Rensburg JJ.A.

BETWEEN

Golam Mehedi

Appellant

and

2057161 Ontario Inc. (c.o.b. Job Success), M.A. Hameed,

Wendell Lacombe and Dale Smith

Respondents

Golam Mehedi, acting in person

Ranjan K. Agarwal and Joseph Marcus appearing as amicus curiae

Dale Smith, acting in person and as agent for all respondents

Heard: September 4, 2015

On appeal from the order of Justice Kevin Whitaker of the Superior Court of Justice, dated November 21, 2014.

Lauwers J.A.:

[1] The motion judge refused an order under rule 59.06 of the Rules of Civil Procedure, R.R.O., 1990, Reg. 194 permitting the appellant to lead new evidence after the dismissal of his claim by the trial judge. The evidence, if accepted, could cast doubt on the veracity of the testimony of the respondents on which the trial judge relied. The circumstances are most unusual. For the reasons set out below, I would allow the appeal.

The Trial Decision

[2] According to the appellant, the respondents, operating as “Job Success”, promised to find him a job paying $70,000 per year within two months; he paid them a fee of about $3,700. He sued when they were unable to find him the job.

[3] The trial judge dismissed the case for oral reasons given on June 23, 2011. He accepted the trial testimony of the respondents Hameed and Lacombe, whom he found to be credible witnesses. He stated: “On the evidence before me, there is no basis for a finding that Job Success or any of the defendants made any promises or commitments to Mr. Mehedi that they did not fulfill.”

[4] The trial judge added:

Mr. Mehedi’s understanding of the commitment he claims they made to him is not supported by any independent evidence and, in my view, it is unrealistic and unreasonable under the circumstances. Although Mr. Mehedi may honestly believe he was given the commitment he testified he had received, there is no reasonable basis for his belief and it is not supported by either the viva voce or documentary evidence.

[5] The trial judge specifically found “there was never a promise to find the plaintiff a job within any specified time frame or at any specified salary range.”

[6] This court dismissed the appellant’s appeal from the trial judgment by way of endorsement on January 23, 2012: Mehedi v. 2052761 Ontario Inc., 2012 ONCA 46.

The Proposed New Evidence

[7] Shortly after this court’s decision, the CBC broadcast an episode of the television program Marketplace, which put into question the evidence given by the respondents at the trial. The appellant moved before this court for directions on the procedure for introducing fresh evidence, since the trial decision had been upheld on appeal. In his ruling on the motion, Juriansz J.A., sitting in chambers, explained the situation, at paras. 5-6:

On February 17, 2012, the CBC broadcast an episode of Marketplace titled "Recruitment Rip-off". Marketplace, using hidden cameras, purports to expose how a recruitment agency, carrying on business as "Toronto Pathways", exploits vulnerable unemployed persons by promising to find them good jobs in exchange for fees. The clients shown in the program are mainly unemployed immigrants newly arrived in Canada. The program shows Dale Smith acknowledging that "Toronto Pathways" and "Job Success" are the same business. Mr. Smith, the owner, states, "It is the same corporation. Same address. Brand marketing is the only reason for the change.... Brand marketing just allows a fresh market approach." The program states that the company has changed business names five times in seven years.

The program purports to show company officials unequivocally promising prospective clients that they will be provided good jobs to induce them to enter contracts. The defendant Mr. Lacombe is shown being asked by a Marketplace staffer, "So you're basically guaranteeing me that I'm going to get a job?", and responding, "Absolutely. And we are very good at it." The witness Mr. MacKay is also shown in the program. The program also shows numerous other individuals who make essentially the same allegations as Mr. Mehedi.

See Mehedi v. 2057161 Ontario Inc. (c.o.b. Job Success), 2014 ONCA 604.

[8] Justice Juriansz directed the appellant to bring a motion to adduce fresh evidence and re-open the trial. Since the trial judge had declined to hear the motion because he had been assigned to criminal court, Juriansz J.A. directed that the motion be brought before a motion judge of the Superior Court in the ordinary way. The appellant then brought a motion to introduce as new evidence the Marketplace report, as well as an article in the Metro newspaper recounting similar statements apparently made by the respondent Dale Smith, to a reporter who was posing as a Job Success customer.

The Motion Judge’s Decision

[9] On November 20, 2014, the motion judge dismissed the appellant’s motion. His reasons, in their entirety, read:

On July 30, 2014, Juriansz J.A. in chambers directed the plaintiff to bring a motion in the normal course regarding the admission of new evidence and a new trial as a result. I am not persuaded that this is an appropriate case to exercise my discretion to reopen this matter that had already been tried by Justice Himel [Hainey]. Even if the new evidence was allowed, I do not believe that that would reasonably affect the outcome. The action [sic] is dismissed. Costs to the defendant of $500.00 payable forthwith. Order as appropriate.

[10] The appellant appeals the motion judge’s dismissal of his motion, and invokes both rule 59.06 of the Rules of Civil Procedure and the court’s inherent jurisdiction.

[11] Rule 59.06(2)(a) of the Rules of Civil Procedure provides:

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

The Standard of Review

[12] A motion judge’s decision under rule 59.06(2)(a) is discretionary and attracts considerable deference from a reviewing court, unless the motion judge errs in principle, misapprehends or fails to take account of material evidence, reaches an unreasonable decision (Young v. Tyco International of Canada Ltd., 2008 ONCA 709), or if the reasons do not set out the judge’s reasoning process and reflect consideration of the main relevant factors: R. v. Sheppard, 2002 SCC 26; Diamond Auto Collision Inc. v. Economical Insurance Group, 2007 ONCA 487, at paras. 11-12; Barbieri v. Mastronardi, 2014 ONCA 416, at paras. 22-23.

Analysis

[13] The test under rule 59.06(2)(a) to re-open a trial that applies after the judgment or other order has been issued and entered was set out by Doherty J.A., speaking for the court, in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 1998 CanLII 5454 (ON CA), 41 O.R. (3d) 257, [1998] O.J. No. 3516, at paras. 41 and 44. As he noted, the onus is on the moving party to show that all the circumstances “justify making an exception to the fundamental rule that final judgments are exactly that, final.” In particular, the moving party must show that the new evidence could not have been put forward by the exercise of reasonable diligence at the original proceedings. The court will go on to evaluate “other factors such as the cogency of the new evidence, any delay in moving to set aside the previous judgment, any difficulty in re-litigating the issues and any prejudice to other parties or persons who may have acted in reliance on the judgment.”

[14] In this case, the motion judge’s reasons for refusing to re-open the trial are inadequate. While he briefly states what he views as the appropriate test, the motion judge does not describe the proposed new evidence or relate the test to it. He does not explain why the new evidence fails to meet the test, or why it would not, in his words, “reasonably affect the outcome”, given the critical importance of the trial testimony of the respondents, Hameed and Lacombe, to the trial judge’s decision. In the result, this court is unable to meaningfully review the basis for his dismissal of the appellant’s motion.

[15] In my view, the appellant has met the test under rule 59.06(2)(a) as articulated in Baetz. It is plain that the proposed new evidence was not available at the time of the first trial or the first appeal. The appellant did not delay in seeking relief. The new evidence is cogent, in that it is apparently credible and, if accepted, would probably have affected the result at trial; the new evidence could serve to undermine the evidence given by the respondents and bolster that of the appellant. That is because the video shows representatives of Job Success apparently making the same or similar promises to others that the trial judge found to be “unrealistic and unreasonable” with respect to the appellant. Finally, I see no prejudice to the respondents if the trial were re-opened.

[16] Amicus submits that the motion judge erred in applying the test for re-opening a trial described by the Supreme Court of Canada in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983. The Sagaz test was articulated in a case in which the judgment at issue had not yet been issued and entered. In the present case, while no formal judgment was taken out, the trial decision had been appealed. Amicus asserts that the motion judge ought to have applied the Baetz test, which includes the consideration of a number of different factors, including balancing fairness against the interest in finality.

[17] In Sagaz, the Supreme Court accepted, at paras. 20 and 64, the motion judge’s application of the two-part test for re-opening a trial described by the High Court in Scott v. Cook, 1970 CanLII 331 (ON SC), [1970] 2 O.R. 769:

First, would the evidence, if presented at trial, probably have changed the result? Second, could the evidence have been obtained before trial by the exercise of reasonable diligence?

[18] Courts citing Sagaz often seem to boil the test down to these two questions (see, for example, 1057854 Ontario Inc. v. Kara Holdings Inc., [2005] O.J. No. 1144, at para. 40; Wesbell Networks Inc. (Receiver of) v. Bell Canada, 2013 ONSC 7814; Irving Shipbuilding Inc. v. Schmidt, 2014 ONSC 5089, at para. 57; Madock v. Grauer, 2010 BCSC 1709). However, the Supreme Court, at para. 60, added this important direction: “Appellate courts should defer to the trial judge who is in the best position to decide whether, at the expense of finality, fairness dictates that the trial be reopened.” Plainly then, fairness is also an important factor, including prejudice to others who have acted in reliance on the judgment, as Baetz notes.

[19] I further note that in Sagaz, the Supreme Court, at para. 63, approved the following comments by Lord Denning in Ladd v. Marshall, [1954] 1 W.L.R. 1489 (C.A.), at p. 1491:

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, though it need not be incontrovertible. [Emphasis added.]

[20] In my view, properly understood, the test in Sagaz goes beyond the two questions of whether the new evidence, if presented at trial, would probably have changed the result, and whether the evidence could have been obtained before trial by the exercise of reasonable diligence. It includes considerations of finality, the apparent cogency of the evidence, delay, fairness and prejudice, factors that were articulated by this court in its decision in Baetz. The error in this case was not in the motion judge’s decision to apply Sagaz rather than Baetz, but in his application of the test, as I have already described. In this case, the new evidence meets both the Baetz and the Sagaz tests for re-opening a trial assuming there is any real distinction between the two.

Disposition

[21] Because of the nature of the inquiry, a motion under rule 59.06(2)(a) to reopen a trial decision based on fresh evidence should be brought before the trial judge, who is in the best position to contextualize the fresh evidence and to direct the trial of an issue if appropriate: Janjua v. Khan, 2014 ONCA 5 at para. 11. See Sagaz, at para.60. This is the practice that should be followed unless there is some real impediment to the trial judge dealing with the motion.

[22] I would allow the appeal, re-open the trial and remit the matter to the trial judge for reconsideration in light of the fresh evidence. It will be for the trial judge to determine the admissibility of the new evidence and its effects, if any, on the merits of the case.

[23] In the circumstances, I would set aside all previous cost orders against the appellant in this matter, including the costs of the first trial, the appeal to this court from the first trial judgment and the costs of the motion before the motion judge. It will be for the trial judge to determine appropriate costs dispositions, based on his reconsideration of the case.

[24] I would also award the appellant $2,000 for the costs of this appeal, inclusive of disbursements and all applicable taxes.

Released: October 6, 2015 “PL”

“P. Lauwers J.A.”

“I agree E.A. Cronk J.A.”

“I agree K. van Rensburg J.A.”