Court of Appeal for Ontario

Date: 2018-07-09 Docket: C64667

Judges: Feldman, Hourigan and Brown JJ.A.

Parties

Between

Dmitri Malkov Applicant (Respondent)

and

Natalia Stovichek-Malkov Respondent (Appellant)

and

Mikhail Malkov Respondent (Respondent)

Counsel

Robert G. Schipper and John Freeman, for the appellant

Leonard Susman, for the respondent Mikhail Malkov

Heard: July 3, 2018

On appeal from: The order of Justice Heather A. McGee of the Superior Court of Justice, dated November 15, 2017, with reasons reported at 2017 ONSC 6822.

Reasons for Decision

I. OVERVIEW

[1] The appellant, Natalia Stovichek-Malkov, appeals from the order of the trial judge (i) declaring that her former father-in-law, the respondent Mikhail Malkov, is the sole beneficial owner of 41 Arnold Avenue, Thornhill (the "Property") and (ii) requiring Natalia and her former husband, Dmitri Malkov, to transfer all of their right, title and interest in the Property to Mikhail.

[2] The trial judge found that Natalia and Dmitri held title to the Property on a resulting trust in favour of Mikhail, who is the sole owner of the Property.

II. THE GROUND OF APPEAL

[3] Natalia advances a single ground of appeal: she submits the trial judge did not conduct the proceedings in a fair manner because she refused to allow Natalia to call as a witness Janna Donskoy, the lawyer who acted on the purchase of the Property.

III. THE TRIAL PROCESS

[4] A brief chronology of the events concerning the trial is required to assess this ground of appeal.

[5] As a result of trial management directions, the trial of the property and support issues was bifurcated from that for custody issues.

[6] At the start of the property/support issues trial on May 30, 2017, the trial judge proposed that the parties put in their cases in the following order: Mikhail, Natalia, and then Dmitri, followed by closing submissions. Counsel agreed to this sequence.

[7] Although Mikhail had indicated on the Trial Scheduling Endorsement Form (the "Form") that he would be calling Ms. Donskoy as a witness, during his cross-examination on the second day of trial, May 31, 2017, his counsel advised that he would not. Natalia then put in her case, and did not seek to call Ms. Donskoy. Dmitri then put in his case-in-chief on June 2, 2017.

[8] The continuation of the trial was put over until September 18, 2017. At that time, Natalia's counsel advised the court that he had issued a summons to Ms. Donskoy in June and intended to call her as a witness. He informed the court that he had not talked with Ms. Donskoy about the substance of her potential evidence nor did he otherwise know what her evidence would be. Counsel stated he was aware that none of Mikhail, Dmitri or Natalia had waived privilege in respect of any conversations they might have had with Ms. Donskoy.

IV. THE TRIAL JUDGE'S RULING

[9] Noting that Natalia did not have a right to call reply evidence because she had not led her evidence first, the trial judge treated her advice that she intended to call Ms. Donskoy as a request to reopen her case. The trial judge observed that the Family Law Rules, O. Reg. 114/99, did not address such a situation, which led her to consider two of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that covered analogous circumstances – rules 52.10 and 53.01(3).

[10] Rule 52.10(a) provides that "[w]here, through accident, mistake or other cause, a party fails to prove some fact or document material to the party's case, (a) the judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs". Rule 53.01(3) states that a trial judge "may at any time direct that a witness be recalled for further examination."

[11] The trial judge stated that Natalia did not frame her request as one based on an accident or mistake. She pointed out that Natalia had every opportunity back in May and June to call Ms. Donskoy. The trial judge then turned to what she considered was the heart of the matter, stating:

Materiality is the place where this motion must fail. Even three months after the closing of his case, [Natalia's counsel] cannot say what the evidence [of Ms. Donskoy] will be or if it would be relevant. It may not even be available due to solicitor-client privilege. His client has not waived her privilege, which would be a prerequisite to calling the witness. It's an end right there…

To allow [Natalia] to reopen her case to call a witness who, at this point, has no discovered evidence to provide would, and I don't say this lightly, be an abuse of process. Trials have a beginning, a middle, and an end.

V. ANALYSIS

[12] Natalia submits the trial judge did not apply a sufficiently detailed test when considering her request to reopen her case. The trial judge relied on the decision in Scott v. Cook, [1970] 2 O.R. 769 (H.C.), which held that on a motion to reopen trial proceedings, the requesting party must show that the evidence sought to be adduced is such that, if it had been presented during the trial, it probably would have changed the result.

[13] Natalia contends the more appropriate test to be applied in the context of family law proceedings is that set out in Catholic Children's Aid Society of Toronto v. M.R., 2014 ONCJ 762, 64 R.F.L. (7th) 470. In that case, as in the present one, the request to reopen the case was made before the judge had given reasons for judgment, in contrast to Scott where the request was made after reasons for judgment had been delivered but before formal judgment had been entered.

[14] In Catholic Children's Aid Society of Toronto, the court stated, at para. 17:

Factors which a court will consider in civil cases in determining whether to allow a plaintiff to re-open are set out below:

• 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 case differently if he 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 reopening 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? [Footnotes omitted.]

[15] We agree that the Catholic Children's Aid Society of Toronto case provides a helpful list of factors for a trial judge to consider when entertaining a party's request to reopen her case. In our view, when the reasons of the trial judge for her ruling are read as a whole, they disclose that she took into account the factors most relevant to the specific circumstances of the case.

[16] In her ruling, the trial judge expressed concern that Natalia was seeking to reopen her case towards the end of the trial notwithstanding that: (i) all parties had agreed on the sequence in which they would call their cases; and (ii) Mikhail had disclosed, before Natalia opened her case, that he would not be calling Ms. Donskoy. As the trial judge stated, "every opportunity was available for this witness to be called by [Natalia]."

[17] The trial judge reasonably placed considerable weight on the nature or materiality of the proposed evidence. Natalia was unable to identify for the trial judge what relevant evidence Ms. Donskoy could offer if allowed to testify. Natalia's counsel had not tried to interview Ms. Donskoy to ascertain what she might say. Nor had Natalia sought to call Ms. Donskoy back in May when it became apparent Mikhail did not intend to call her as a witness.

[18] Significantly, Natalia has not sought leave to adduce on this appeal fresh evidence that describes Ms. Donskoy's potential testimony. We are left in the same position as the trial judge found herself – we do not know what Ms. Donskoy might say.

[19] However, Natalia contends that the language in the Form weighs strongly in her favour. In the section where Mikhail listed the witnesses he intended to call, which included Ms. Donskoy, the Form states: "By naming a witness below, the party undertakes to make the witness available to the other party without summons even if the party decides not to call the witness." Given that language, Natalia argues that the trial judge failed to give appropriate consideration to Mikhail's decision not to call Ms. Donskoy.

[20] We are not persuaded by this submission. By listing a witness on the Form, a party does not undertake to call that witness but only to make the witness available to the other party without summons in the event the listing party decides not to call the witness. In the present case, Mikhail's counsel advised that he would not call Ms. Donskoy. At that stage of the trial, the undertaking in the Form offered Natalia a mechanism by which she could secure Ms. Donskoy's evidence for her case without summons, but she did not avail herself of the opportunity. Instead, she waited several months until the resumption of the trial to request reopening her case.

[21] Given Natalia's lack of forensic diligence regarding Ms. Donskoy's evidence and the absence of any evidentiary basis to suggest the lawyer's evidence probably would have an important influence on the result of the case, we see no error in the cost/benefit and fairness analysis conducted by the trial judge that led her to exercise her discretion to refuse Natalia leave to call Ms. Donskoy.

VI. DISPOSITION

[22] For the reasons set out above, we dismiss the appeal.

[23] Based on the agreement of the parties about the costs of the appeal, Natalia shall pay Mikhail his costs of the appeal fixed in the amount of $26,000, inclusive of disbursements and all applicable taxes.

"K. Feldman J.A."

"C.W. Hourigan J.A."

"David Brown J.A."