Court File and Parties

PETERBOROUGH COURT FILE NO.: 59/14 DATE: 10072017

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

Elizabeth Heather Lena Lambert, Applicant – and – Eric Norman Peachman, Respondent

Counsel: Russell Alexander, for the Applicant Michael Tweyman, for the Respondent

HEARD: July 7, 2017

WOODLEY, S.J.

DECISION REGARDING MOTION TO RE-OPEN TRIAL

OVERVIEW

[1] The trial in this matter commenced on November 24, 2015 and continued for 16 days over two trial sittings. The evidence at trial concluded on June 1, 2016.

[2] The majority of the evidence related to parenting issues, however, there was also evidence relating to financial issues.

[3] Following discussion with counsel, by Endorsement dated June 1, 2016, I directed the parties as follows: (i) to file their parenting submissions within a specified timeline; and (ii) following release of the parenting decision to file their financial issue submissions, including Sur-rebuttal Reply, within a further specified timeline.

[4] The Reasons for Decision regarding parenting issues was released on December 1, 2016.

[5] Following release of the parenting decision, the parties filed their financial issue submissions as per the June 1, 2016 Endorsement, excepting Sur-rebuttal Reply.

[6] As for Sur-rebuttal Reply, the Applicant objected to the Respondent filing these submissions by way of a 14B Motion on the basis of timing and necessity. The issue of the filing of the Sur-rebuttal Reply was set for argument for June 27, 2017.

[7] On June 22, 2017, the Applicant served a Notice of Motion returnable June 27, 2017 seeking permission to reopen the evidence of the trial, to file an affidavit sworn by the Respondent on May 4, 2017 (in a different family law file), and to allow further cross-examination of the Respondent.

[8] On June 27, 2017, I allowed the Respondent to file the Sur-rebuttal Reply.

[9] With respect to the Applicant’s Motion, I ordered the Respondent to file his May 4, 2017 affidavit (with attachments) and adjourned the balance of the Applicant’s Motion to July 7, 2017.

[10] On July 7, 2017, the parties attended to argue the Motion. These are the Reasons for Decision relating to Applicant’s Motion to reopen the evidence of the trial.

ISSUE

[11] The issue is whether in the particular circumstances of this case permission should be granted to reopen the evidence of the trial.

BACKGROUND FACTS

[12] The Applicant Elizabeth Lambert and the Respondent Eric Peachman were married on May 12, 1990 and separated on June 6, 2012.

[13] The within proceedings were commenced in January of 2014.

[14] The trial of the matter commenced on November 24, 2016, and was heard over two trial sittings for a total of 16 days. The evidence at trial concluded on June 1, 2016.

[15] My Reasons for Decision regarding parenting were delivered on December 1, 2016.

[16] Sur-rebuttal Reply was sought to be filed by 14B Motion on March 23, 2017. Due to the Applicant’s objections the matter was delayed for hearing in open court to June 27, 2017.

[17] The Respondent swore an affidavit in an unrelated family law filed on May 4, 2017.

[18] The information contained in the Respondent’s affidavit relates to a claim made by him against his most recent common law spouse, Cheryl Senior, and the Respondent’s claim for an interest in a home registered solely in Ms. Senior’s name on February 18, 2015.

[19] As noted, I ordered that the Respondent file the affidavit sworn by him on May 4, 2017, together with all attachments. This affidavit of Eric Peachman contains the following relevant information:

a. The home was purchased on February 18, 2015, and was registered in Ms. Senior’s name alone;

b. The relationship between Mr. Peachman and Ms. Senior broke down sometime following July of 2016;

c. The affidavit was sworn in support of an ex-parte motion as Ms. Senior unilaterally listed the house for sale and intended to sell the house and use the proceeds for a new house;

d. Mr. Peachman describes his claim as a claim for “a trust, whether by way of resulting trust or constructive trust” with respect to the property;

e. Mr. Peachman specifically states that the claim “is not a joint family venture, but rather classic principles of unjust enrichment and resulting trust”;

f. Mr. Peachman claimed to have contributed significantly to the property, both financially and with his hands;

g. Mr. Peachman swore that “it was the parties’ intention that we would be joint owners, notwithstanding that Ms. Senior’s name was on title;

h. Mr. Peachman claimed he contributed $17,500 towards the purchase and advised that he paid $1,050 per month to Ms. Senior;

i. Mr. Peachman claimed he paid all household bills and “improved the house in a multitude of ways” including landscaping and the general maintenance, installing (but not digging) a fence around the perimeter, upgrading a basement room, and creating a breezeway. The claim was that the “projects added substantial value to the house”;

j. Mr. Peachman claimed that Ms. Senior did not “compensate” him in any way for this work and if she was allowed to keep the “gains from my work” she would be unjustly enriched; and

k. The affidavit further states that Mr. Peachman and Ms. Senior commenced negotiations regarding “how much I ought to receive because of my contributions to the house”.

[20] Attached to the Respondent’s affidavit sworn May 4, 2017, are various documents including a letter dated May 2, 2017, sent from Ms. Senior’s lawyer. This letter states “your client has no interest in the property whether formally, on title, or in the form of unjust enrichment or a constructive trust” and “given the foregoing your client has no role to play in the sale of the home”.

[21] In addition there are various emails attached between the banking mortgage representative and Ms. Senior and two emails between Mr. Peachman and the bank.

[22] Mr. Peachman is not copied on any emails submitted between the bank and Ms. Senior following the date it is determined that Ms. Senior will obtain the mortgage on her own.

[23] On November 6, 2014, the bank representative advises that the bank will approve Ms. Senior as the solely for the mortgage is she is able to provide a “gift letter” regarding the down payment.

[24] Ms. Senior was approved solely for the mortgage and the house was registered solely in her own name.

[25] The Applicant seeks to reopen the case based on the evidence contained in the affidavit sworn May 4, 2017. The argument is that the information was available at trial but could not be produced and further that if the evidence were not re-opened that it would cause a miscarriage of justice. Finally, the Applicant argues that the May 4, 2017, affidavit clearly proves that Mr. Peachman “lied” and “attempted to mislead the court” at trial and the new evidence is crucial to a finding of credibility which it is argued is material to the issues in dispute.

ANALYSIS

[26] The principles and authority to re-open evidence of a trial are well established and noted by the Supreme Court of Canada in Sagaz Industries Canada Inc., Sagaz Industries Inc. and Joseph Kavana v. 671122 Ont Limited, formerly Design Dynamics Limited [2001] 2 R.C.S. to fall within the trial judge’s discretion but to be used “sparingly and with the greatest care”.

[27] The Court is concerned with never ending litigation. The competing tensions are between finality to the hearing process and the need to prevent unduly protracted legal proceedings against the need to ensure that important and relevant evidence is not ignored, since doing so might lead to a substantial injustice (See Justice P. Lauwers at par. 16 in Jackson v. Corp. of the City of Vaughan).

TEST TO ADMIT NEW EVIDENCE

[28] The test to re-open evidence of a trial to admit new evidence, is a two-prong test, both parts of which must be satisfied by the moving party:

a. First, could the evidence have been obtained before trial by the exercise of reasonable diligence?

b. Second, would the evidence, if presented at trial, probably have changed the result?

AVAILABILITY OF EVIDENCE AT TRIAL AND REASONABLE DILIGENCE

[29] The reasonable diligence requirement may be “relaxed in exceptional circumstances where necessary to avoid a miscarriage of justice” (See Degroote v. Canadian Imperial Bank of Commerce, [1999] O.J. No. 2313 (C.A.) at p. 2.). To avoid a miscarriage of justice a “trial judge has the discretion to permit a matter to be reopened and new evidence to be admitted even if the evidence could have been placed before the Court in the first instance” (See 130734 Ontario Inc. v. 1243058 Ontario Inc., [2001] O.J. No. 257).

[30] Nordheimer J. noted at p. 3 – 4 in 1307347 Ontario Inc.:

It is also my view that a miscarriage of justice involves more than just a finding that a different result might have occurred. It involves a finding that, absent the reopening of the matter and the reversal of the original determination, a fraud would be perpetrated or the giving of perjured evidence or the deliberate misleading of the court would be countenanced.

[31] In Qit Fer et Titane Inc. v. Upper Lakes Shipping Ltd. (1991), 3 O.R. (3D) 165, at p. 168, Gravely J. suggested that fraud was the usual requirement, but it may not be the only basis to find a miscarriage of justice:

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.

[32] In the present case, counsel for the Applicant submitted that the fresh evidence sought to be admitted clearly proves that the Respondent was trying to deliberately mislead the court with respect to the issue of the ownership of the house and his ability to work.

[33] The Applicant’s submissions regarding intention to deliberately mislead focus on the following: (i) rent vs. own; (ii) no money vs. $17,500 deposit; (iii) I only helped her pick it out vs. I was to be on title; (iv) this was an investment for Cheryl vs. we purchased this together; and (v) I can’t work and am completely disabled vs. I built rooms, built fences, etc.

[34] The Respondent claimed an interest in Ms. Senior’s property on the basis of resulting trust, constructive trust and unjust enrichment. The Respondent did not claim an interest based on joint family venture, express trust or secret trust.

[35] Joint family ventures, express trusts and secret trusts all require the parties to share a common intention to beneficially own property jointly. Joint family ventures, express trusts, and secret trusts often (although not always) include a written agreement outlining the parties’ responsibilities and interests.

[36] Clearly there was no written agreement between Mr. Peachman and Ms. Senior or such agreement would have been attached to the May 4, 2017 affidavit.

[37] Resulting trusts also require a commonality of intention, however, intention may be inferred from the parties’ contributions and/or actions. Generally speaking, resulting trusts are not recorded by any separate written agreement but are proven through independent evidence.

[38] Finally, constructive trust and unjust enrichment claims focus on a parties’ contributions to the purchase, maintenance and improvements, which may create an interest in the property. Constructive trusts and claims for unjust enrichment are not recorded by any separate written agreement between the parties but are proven through independent evidence.

[39] Mr. Peachman attached what evidence he had to establish his claim against Ms. Senior. The evidence attached established that (a) Mr. Peachman provided a letter to Ms. Senior which “gifted” the $17,500 deposit; and (b) Ms. Senior through her counsel absolutely denied that Mr. Peachman owned or was intended to own any interest in the property.

[40] As for the summary of work completed by Mr. Peachman to “improve” the property – a similar claim was made by Mr. Peachman with respect to the property that he owned with Ms. Lambert. Mr. Peachman was thoroughly cross-examined on the issue of his ability to renovate the home and otherwise hold employment.

[41] I find in the circumstances of this case that there was no fraud or deliberate misleading of the court. Similar to Wong and Wong v. Adler, although I may have drawn an inference, that I may otherwise have made based on the evidence before me, there is no indication that I was deliberately misled.

[42] Returning to the first prong of the test to admit new evidence, could the evidence have been obtained before trial by the exercise of reasonable diligence, I note as follows:

a. Mr. Peachman produced all documents requested by the Applicant;

b. Ms. Senior was noted as a witness to be called by Mr. Peachman. She was struck at the last instance. However, there was no request by the Applicant to call Ms. Senior in reply to challenge evidence on any issue including ownership of the property purchased in February of 2015;

c. Ms. Senior was not a party to the proceeding and the Applicant was not entitled to obtain documentation exchanged between Ms. Senior, her bank, or her solicitors; and

d. Had Ms. Senior been called as a witness it is likely that her evidence would have been consistent with her lawyer’s May 2, 2017 letter which is supportive of the evidence provided by the Respondent at trial.

[43] It is unclear whether the “new” evidence could have been obtained using due diligence. All documents requested had been produced by the Respondent, the Applicant had a copy of the property register and transfer/deed, and Ms. Senior could have been summoned as a reply witness. However, the “new” evidence sought to be entered consists primarily of the statements contained in the Respondent’s May 4, 2017 affidavit relating to ownership and contributions.

[44] The affidavit did not exist at trial. Further, given the nature of the trust claims made, it is not apparent that the statements could have been made at the date of trial (i.e. the contributions to the property arose over time). Further, even if the evidence were available, the claims made were entirely disputed by Ms. Senior. In summary, it is not certain whether the evidence existed or whether the evidence is credible.

WOULD THE NEW EVIDENCE HAVE AFFECTED THE RESULT?

[45] With respect to the second prong, would the evidence, if presented at trial, probably have changed the result and/or may have an influence on the result, I note as follows:

a. Mr. Peachman claimed to have provided work and services to the matrimonial home that he shared with Ms. Peachman, submitted a claim for his services, and was thoroughly cross-examined on his ability to work;

b. Whether Mr. Peachman owned or rented the property has no effect on the equalization of the parties’ net family property, child support, spousal support or any other financial issue in dispute; and

c. The issues relating to the home shared with Ms. Senior are collateral facts which do not affect the material outcome of the trial. An attack on credibility alone is insufficient to re-open the evidence where the facts in dispute are collateral.

[46] The essence of the new evidence is that the Respondent held an ownership interest in the “rental” property and further that he deliberately mislead the court. I have already found that there is insufficient evidence to show that the court was deliberately misled. As for the claim of ownership, in my view, it is clear that the new evidence would not change the result of the trial.

[47] It is a serious matter to re-open a trial and should never be done unless it seems imperative in the interests of justice. This trial has laboured long enough. It would not serve the interests of justice to re-open the evidence in this trial.

DISPOSITION OF MOTION

[48] The Applicant has failed to satisfy me that there are exceptional circumstances that would compel me to exercise my discretion and accept the additional evidence to prevent a miscarriage of justice.

[49] Despite the very able submissions of Mr. Alexander, the motion to re-open the evidence is dismissed.

[50] Given the circumstances leading to the Motion to Re-open the Evidence each party shall bear their own costs of the motion.

Justice S.J. Woodley

Released: July 10, 2017