Court Information

Ontario Court of Justice 491 Steeles Avenue East, Milton, ON L9T 1Y7

Date: February 6, 2017

Parties

Applicant: Olivia Glegg Counsel: Jesse Mark

Respondent: Robert Glegg Counsel: Gary Joseph & Ryan Kniznik

Endorsement

Background

[1] The Respondent, Robert Glegg ("Robert") moves by 14B motion to reopen the evidence in two motions that have been heard together before me, but whose decision remains on reserve. Robert brought a summary judgment motion, seeking to dismiss this child support application brought by his daughter, Olivia Glegg ("Olivia"). Olivia moved for a temporary order of child support.

[2] In his 14B motion, Robert seeks an order "[t]o receive further evidence relating to the long motion argued January 16, 2017". In support, he relies upon an affidavit of his lawyer's law clerk that attaches an order of Justice Hainey of the Superior Court of Justice dated January 23, 2017 (one week after the motions were argued before me). That order placed 2Source Manufacturing Inc. ("2Source"), a company in which Robert has a 60% interest, into receivership. In light of the open ended wording of the notice of motion it is not clear whether Robert intends to rely on more than the order itself as his fresh evidence in this motion.

[3] Olivia resists this motion and brings one of her own. She seeks an order dismissing Robert's motion. In the alternative, if Robert is to be allowed to provide further evidence, she seeks an order for very specific disclosure, based on the request for information made by a forensic accountant that her counsel has retained.

Issues to be Determined

[4] In order to resolve the two motions, I must consider three issues:

1. Do I have the jurisdiction to entertain new evidence after the argument of the motions is completed?

2. If I have the jurisdiction, should I exercise my discretion to allow Robert to provide fresh evidence related to its receivership?

3. If Robert is allowed to file evidence of 2Source's receivership order, should I order further disclosure?

[5] The deeper issue that I am called upon to consider is whether Robert has provided sufficient evidence to show that the motions should be reopened, and if so, on what terms?

[6] For reasons that follow, I find that I have jurisdiction to reopen argument, but that Robert has failed to meet the test for my exercise of discretion to allow the admission of his proposed fresh evidence in the motions now awaiting decision.

Issue #1: Jurisdiction to Hear the Fresh Evidence

[7] Robert's counsel argues that it is open to me to accept further evidence in the motions because I am not functus officio. Mr. Mark does not dispute that argument. Both counsel are correct.

[8] The Dictionary of Canadian Law (3rd ed. 2004) defines the Latin term, functus officio, as "having discharged one's duty". Black's Law Dictionary (5th ed. 1979) defines the term as "a task performed":

Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. Applied to an officer whose term has expired and who has consequently no further official authority; and also to an instrument, power, agency, etc., which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect.

That definition was adopted by the Supreme Court of Canada in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, at paragraph 39.

[9] In R. v. Head, [1986] S.C.J. No. 76, McIntyre J., writing for the majority of the Supreme Court of Canada stated:

It is generally accepted that a trial judge sitting without a jury is not functus officio until he has finally disposed of the case. … The trial judge can, in exceptional circumstances and before the imposition of the sentence, reopen the case to permit the accused to tender further evidence. This principle, stated over one hundred years ago in R. v. Clouter & Heath (1859), 8 Cox C.C. 237 has recently been reaffirmed in Canada …

[10] In Sheeraz v. Kayani, 2010 ONSC 3821 (SCJ), Justice David Price of the SCJ reopened argument of the already determined issue of costs of the proceeding. He did so because he realized that he had made an error in regard to the consideration of an offer to settle in his previous costs endorsement. Price J. cites his authority for doing so as follows:

My Order in the motion has not yet been taken out and until an Order is formally entered in the court record, a judge has a broad discretion to change it. It is well settled in law that an order can always be withdrawn, altered or modified by a Judge either on his own initiative or on the application of a party until such time as the order has been drawn up, passed and entered.

[11] As I have not issued a ruling, let alone granted an order that has been entered, I clearly am not functus.

[12] With that finding, I look next to the Family Law Rules ("FLR") to see whether it constrains the admission of Robert's proposed evidence. While FLR r. 14(20) places restrictions on the filing of affidavits for a motion, that requirement is tempered by r. 1(7.2)(g), which reads as follows:

(7.2) For the purposes of promoting the primary objective of these rules as required under subrules 2(4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just, including an order,

(g) that all or part of an affidavit or any other evidence filed at any stage in a case, and any cross-examinations on it, may be used at a hearing;

[13] The primary objective of the FLR cited by r. 1(7.2) is to enable the court to deal with cases justly (r. 2(2)). Subrule 2(3) states that the court does so by:

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

[14] Accordingly, I find that the FLR grant me the authority to allow further evidence to be filed even after the argument of this motion has concluded. But the rule does not tell me how to exercise my discretion.

Issue No. 2: Should I Allow Robert to Provide Fresh Evidence?

[15] In considering the second issue I must look to the test for allowing fresh evidence following the hearing of a motion but before its decision has been released. While the test is more relaxed than it would be after a decision had been released the admission of that evidence is far from automatic. Here Robert fails to meet even a relaxed test for admission.

Test Following the Release of Decision

[16] In 671122 Ontario Ltd. v. Sagaz Industries, 2001 SCC 59, [2001] S.C.J. 61 ("Sagaz"), the Supreme Court of Canada considered the test for admission of fresh evidence after the release of reasons but before formal judgment is entered. Justice John Major, speaking for the court, stated at paragraph 61 that:

the case law dictates that the trial judge must exercise his discretion to reopen the trial "sparingly and with the greatest care" so that "fraud and abuse of the Court's processes" do not result.

[17] Major J. adopted this test set by Lord Denning in Ladd v. Marshall, [1954] 1 W.L.R. 1489 (C.A.), at page 1491:

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.

Relaxed Test Before Decision Released

[18] In Jackson v. Vaughan (City), [2009] O.J. No. 145 (SCJ), Justice Peter Lauwers, then of the SCJ, looked at the test for the admission of fresh evidence when a matter has been heard, but the decision had not yet been released. He found that the court should take a "somewhat relaxed approach", although one "… mindful of the need to avoid never ending evidence." Lauwers J. adopted a standard to admit fresh evidence in such cases that looks to whether there is a possibility that the fresh evidence may have an influence on the result.

[19] Nonetheless the admission of fresh evidence after a motion is heard should be very much the exception rather than the rule. Parties should not wait to hear argument on the evidence already before the court or even judicial comment on that evidence during the course of argument, before deciding to provide further evidence to buttress their case. Further, evidence must be led to show that the fresh evidence may have an effect on the result. The court should not have to guess about whether the proposed evidence meets even the low threshold of Jackson.

Robert Has Provided Little Evidence Thus Far Regarding 2Source

[20] Here Robert has provided no direct evidence or even submissions to explain why that receivership order may affect my determination of the issues in the summary judgment or interim support motions.

[21] Here, Robert has not yet been required to make full financial disclosure to Olivia with regard to 2Source or his other sources of income. On November 10, 2016, I ordered that Robert serve and file his financial statement, as well as the disclosure required by r. 13(3.1) by November 21, 2016.

[22] Six days later, on November 16, 2016 Robert brought a 14B motion that he described as "URGENT". In that motion he sought to amend my previous order. He sought leave to provide only limited disclosure for the pending summary judgment and temporary support motions. He sought to reduce his disclosure obligation to his three prior personal tax returns, notices of assessment and reassessment, and his most recent statement of earnings paid to date related his employment income from 2Source. He argued against fuller disclosure because:

• 2Source operates in a competitive industry. He argued that public disclosure of corporate financial documentation and information would be highly prejudicial to 2Source and possibly its shareholders.

• It would take about a month to gather the information, but the motions were then scheduled for less than a month away (they were later adjourned at Robert's request).

[23] Olivia did not object, so I granted the order requested. I noted that "…the disclosure above is likely sufficient for the purpose of the support motion."

[24] As a result of that unopposed order, the only evidence that Robert has proffered to date of his relationship to and income from 2Source is that:

• 2Source manufactures aircraft landing gear bushings in Mississauga;

• Robert holds "… an ownership interest in 2Source of approximately 60%";

• There are "…approximately 10 other shareholders of 2Source";

• In his financial statement Robert:

  • does not value his interest in 2Source;
  • states that he is employed by 2Source at a salary of $200,000.00 per year. That is the only income he claims to earn;
  • lists a debt of $1,400,000.00 that 2Source owes him (he does not state whether this is, say a shareholder's loan or some other form of debt).

Robert Fails to Meet Relaxed Onus

[25] It may be possible that the 2Source receivership may influence Robert's ability to pay. But the onus is on him to provide evidence showing that to be the case. Yet in the materials filed in support of this motion, Robert has not informed me of the manner in which he says that the receivership will affect his income. It may be that the receivership will affect only his assets rather than his income, or vice versa. Robert does not say.

[26] In fact Robert has not even filed his own affidavit attesting to the potential value of the receivership evidence. All that he has provided to the court is an affidavit of his lawyer's law clerk, attaching the receivership order and stating that Mr. Mark refused to agree to allow it into evidence. While the bar set by Lauwers J. in Jackson v. Vaughan (City) is a low one, Robert's materials fail to clear even it.

[27] In the circumstances, I will not allow Robert to file fresh evidence related to 2Source's receivership in regard to the two motions that have been argued before me.

Issue No. 3: If Robert is Allowed to File the Receivership Order Should I Order Further Disclosure?

[28] Because of the decision set out above, it is not necessary for me to decide this issue.

Order

Accordingly I order that:

1. This motion is dismissed.

2. Costs of this motion are reserved to the completion of the motions currently before me.

February 6, 2017

Justice Marvin Kurz