COURT FILE NO.: FS-11-082-0000

DATE: 2018-05-24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kim Kevin Hunt c/o his Court Appointed Guardians Bradley James Hunt and Justin Abraham Hunt Applicants

– and –

Kathleen Anne Worrod Respondent

D. Andrew Thomson Respondent on costs issues

Legal Aid Ontario Respondent on costs issues

COUNSEL: Andrea McEwan and Amanda Bettencourt, for the Applicants No One appearing for Kathleen Anne Worrod Rose Muscolino, for the Respondent D. Andrew Thomson Gideon C. Forrest and Mitch Stephenson, for the Respondent Legal Aid Ontario

HEARD: May 14, 2018

Reasons on Motion to Re-Open the Evidence and Vary the Costs Decision of April 17, 2018

INTRODUCTION

[1] In its decision of April 17, 2018, this court decided that Legal Aid Ontario ("LAO") was liable to pay a portion of the costs of this action. LAO responded by bringing this motion for an order to re-open the evidence in relation to the payment of costs, and to vary the decision.

BACKGROUND

[2] On June 18, 2011, Kim Hunt ("Kim" or "Mr. Hunt") was involved in an ATV accident in which he sustained a catastrophic brain injury. Following the accident, he was transported to Health Sciences North ("Sudbury General Hospital") where he remained in a coma for 18 days. A capacity assessment was arranged for Kim and thereafter the Public Guardian and Trustee of the Province of Ontario became Kim's statutory guardian pursuant to a Certificate of Incapacity to Manage Property. Notice of the Certificate was registered on the title to his residence in the Town of Novar, Ontario.

[3] Eventually, on October 21, 2011, following a four-month hospital stay, Kim was released into the care of his two sons, Brad and Justin Hunt (the "Applicants" or "the Hunts") and he was permitted to return to his home in Novar.

[4] Prior to the accident Mr. Hunt had been involved for several years in what can generally be described as an on again/off again relationship with the respondent, Kathleen Worrod ("Kathleen" or "Ms. Worrod").

[5] Mr. Hunt and Kathleen had purchased the home in Novar as joint tenants on June 15, 2010, approximately a year prior to Kim's accident.

[6] Differences arose in the relationship and in December 2010 Kim and Kathleen prepared and signed a typed written agreement dated December 13, 2010 entitled "Property Settlement Agreement". The agreement provided that they intended to end their co-habitation and settle and formalize their duties and obligations to each other. In return for repayment of the monies which represented her share of the down payment on the home, Ms. Worrod agreed to vacate the Novar premises.

[7] Following the signing of this agreement, Ms. Worrod was paid for her interest in the home and moved to the City of Barrie. However, the parties had not arranged to remove Ms. Worrod's name from the title to the home prior to Kim's ATV accident.

[8] In the early morning of October 24, 2011, three days after he arrived home from the hospital, and unbeknownst to his sons, Mr. Hunt was picked up on the roadway outside of his home by Ms. Worrod's uncle, Ted Konwent.

[9] Eventually, later that day, Mr. Hunt's sons were able to track their father to a hotel in Collingwood, Ontario. Upon locating their father, they learned that arrangements had been made for him to marry Ms. Worrod that afternoon. The wedding had already taken place.

[10] Brad and Justin were appointed guardians of their father for the purpose of this litigation. In December 2011 they commenced this application for an order declaring the marriage void ab initio on the basis that their father did not have the mental capacity to consent to a marriage with Ms. Worrod. Since Kathleen also claimed an interest in the Novar home they also asked the court for an order declaring their father to be sole owner of the home and removing Ms. Worrod's name from title, together with a further order prohibiting any contact and communication between Mr. Hunt and Ms. Worrod.

[11] The trial took place over 10 days, commencing June 5, 2017. The Applicants called numerous expert witnesses who testified on the issue of Mr. Hunt's mental capacity. Final submissions were heard on November 6, 2017. The court released its decision on December 11, 2017. The Applicants succeeded on all claims.

[12] Ms. Worrod moved to British Columbia in 2015 where she is now working at a Tim Hortons. It does not appear that she has any assets.

Costs Submissions

[13] Ms. Worrod's legal costs were paid by LAO throughout. The Hunts delivered their costs submissions on December 20, 2017. In addition to claiming costs against Ms. Worrod, the Applicants also made a claim for costs or for a contribution to costs against Ms. Worrod's lawyer, D. Andrew Thomson and against LAO.

[14] At a case conference on January 19, 2018, it was determined that the Hunts would deliver and serve a written factum in support of their position on costs by February 9, 2018, and the three responding parties would file their factums by February 16, 2018.

[15] At a subsequent case conference on March 2, 2018 it was determined that all respondents were entitled to file written materials in response to reply submissions filed by the Hunts.

[16] The entire day of March 20 was scheduled by the court for oral argument in relation to the costs issue. On that day, representatives for all of the aforementioned parties attended and made submissions.

[17] On April 17, 2018 the court released its costs decision. It held Ms. Worrod liable for full recovery costs which it fixed in the amount of $385,279.54.

[18] With respect to the claim for costs against LAO, the court held that Legal Aid's decision to continue to fund Kathleen's lawsuit for a total of 6 years constituted a failure on its part to carry out its mandate to monitor and review the proceedings. Its actions (or failure to act) constituted an abuse of process, in that they undermined "the public interest in a fair and just trial process and the proper administration of justice". Accordingly, the court invoked its inherent jurisdiction and ordered LAO to contribute 50% of the full indemnity costs which it had fixed as against Ms. Worrod. Fifty per cent of those costs total $192,639.77 and were payable by Legal Aid on a joint and several basis with Ms. Worrod.

[19] Citing the fact that it was not privy to Mr. Thomson's discussions with Legal Aid or with his client, which were privileged, the court found that it had no basis for finding that he acted improperly in his reporting requirements to Legal Aid. In the circumstances, no order for costs was made against him.

THE ISSUES

[20] LAO requests the court to re-open the evidence relevant to the costs decision and vary its decision. In support of its motion LAO submits that in deciding that LAO should be held liable for costs, the court relied on two incorrect factual presumptions.

1) The presumption that Legal Aid had received a copy of a Report prepared by Dr. Olivia Yau dated January 12, 2015

[21] At para. 20 of the court's costs decision I noted that in 2014 Kathleen received approval from Legal Aid to request a report from Dr. Olivia Yau, a clinical neuropsychologist. Dr. Yau delivered her report (the "Yau report") on January 12, 2015. The report was addressed to Ms. Worrod's lawyer, Mr. Thomson. Dr. Yau's report, which was funded by Legal Aid, clearly supported the Applicants' position that Kim lacked the capacity to consent to a marriage.

[22] In finding that LAO had failed to meet its statutory duty to properly monitor the proceedings I stated at paras. 47 and 48:

47... Presumably Legal Aid would also have received a copy of Dr. Yau's report because it paid for this assessment.

48. I do not question Legal Aid's initial decision to grant a certificate, pending its preliminary investigation of Ms. Worrod's claim for funding. However, Dr. Yau's report was available in January, 2015. All of the fees claimed by the applicants were incurred after this date and the trial focussed primarily on the capacity issue. Dr. Yau's report was a complete answer to any issue pertaining to Mr. Hunt's capacity to enter into a marriage. The conclusions reached by Dr. Yau were so adverse to the interests of Ms. Worrod that she chose not to call her as a witness at trial. In fact, she did not call any expert evidence to support her position.

[23] LAO argues that the court should not have presumed that LAO had received a copy of the report from Mr. Thomson when it was released in January 2015. It requests that it be given the opportunity to provide evidence that it did not receive a copy of Dr. Yau's report until May 29, 2017, just days before the commencement of trial.

2) The presumption that Legal Aid had notice of the certificate registered on the title to Mr. Hunt's Novar Property by the Office of the Public Guardian and Trustee (Ontario) when it registered liens against the property on January 27, 2012

[24] At para. 46 of the costs decision the court noted that the Province of Ontario stood in a special relationship to Mr. Hunt because he was a vulnerable person. He had suffered a traumatic brain injury and would never again be gainfully employed. The Office of the Public Guardian and Trustee of the Province ("PGT") therefore took it upon itself to become Kim's statutory guardian pursuant to a Certificate of Incapacity to Manage Property. This certificate served as notice to all that the PGT retained the sole authority to transfer, convey, encumber, charge or deal with Mr. Hunt's property. In fact, any settlement entered into by the guardians in this proceeding would also have required approval from the PGT.

[25] At para. 47 of the decision, the court stated:

47. Legal Aid would have been aware that it was dealing with a vulnerable individual. When it registered its lien against Mr. Hunt's property it would have had notice of the certificate filed by the PGT.

[26] Legal Aid now asks the court for the opportunity to present evidence that when it registered its legal aid liens against the title to the Novar property it did not examine the title or conduct a search of prior encumbrances. Therefore, it did not receive notice of the PGT certificate.

[27] In summary the issues which the court has to decide are as follows:

a) Is LAO entitled to an order to re-open the evidence to refute the presumption that it received a copy of Dr. Yau's report shortly after it was released in January 2015?

b) Is LAO entitled to an order to re-open the evidence to refute the presumption that it received notice of the PGT certificate registered on title at the time it registered its legal aid lien?

[28] In its written submissions in support of its motion LAO proposed that since some of the evidence which it wished to introduce would be comprised of documents which are subject to solicitor-client privilege and/or a statutory duty of confidentiality, the court could make an order to receive such evidence under seal and marked "For Judge's Eyes Only".

[29] LAO's motion to re-open the evidence was scheduled to be argued on Monday, May 14, 2018. On the preceding Friday, May 11, 2018 at approximately 3:30 pm the court and counsel for the other parties received notice from Legal Aid's counsel that Ms. Worrod had agreed to waive privilege and Legal Aid was now free to put evidence before the court with respect to Kathleen's discussions with her counsel, and counsel's subsequent discussions and recommendations to Legal Aid. The court and the parties also received an affidavit sworn by Denise Christine Lunn, Director General, Central District at LAO which set out the communications between LAO and Mr. Thomson.

[30] No final order of the costs decision has been issued and entered and the parties agree that as the trial judge I am not functus officio.

[31] For the purposes of this motion, and for this purpose only, the court assumes that LAO has evidence from which the court could conclude that (i) LAO did not have notice of the PGT restriction until December 13, 2016 and (ii) LAO did not receive a copy of Dr. Yau's report until about May 29, 2017.

[32] If the order is granted, opposing parties indicate that they wish to conduct cross-examinations on this evidence and file additional materials in support of their position.

ANALYSIS

The Applicability of Rule 25(19)(b) of the Family Law Rules and the Courts' Inherent Discretion to Re-Open the Evidence and Change an Order

[33] LAO relies on Rule 25(19)(b) of the Family Law Rules which provides that the court may "change an order" that contains a "mistake". In the event that the Family Law Rules do not cover the matter adequately, it proposes that the court can rely on its inherent jurisdiction to amend an order to prevent a miscarriage of justice.

[34] In the recent decision of the Ontario Court of Appeal in Gray v. Gray [2017] O.J. No. 592 ("Gray") the court confirmed the distinct philosophy that underlies the Family Law Rules. At para. 29 and 30 the court stated:

29. Finally, and most importantly, this interpretation of r. 25(19)(e) promotes the underlying philosophy, scheme, and purpose of the Family Law Rules. As Benotto J.A. stated in Frick v. Frick, 2016 ONCA 799, 132 O.R. (3d) 321, at para. 11:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

30. Rule 2(2) states that the "primary objective of these rules is to enable the court to deal with cases justly." While r. 1(7) permits a court to refer by analogy to the Rules of Civil Procedure where the family rules do not adequately cover a matter, such instances will be "rare": Frick, at para. 12. The Family Law Rules are intended to be a complete procedural code.

[35] The authorities are clear that the rules permitting the amendment or setting aside of a decision should not be applied where a party is, in essence, seeking to have the matter reheard and reconsidered. Once the court has released a decision, it would be a rare case where it might be in the interest of justice to withdraw reasons of the court and open the case up to new evidence. The following comments of MacLeod J. at paras. 20 and 21in N.H. v. J.H. 2017 ONSC 4414 at para. 20 are instructive:

20. It is trite law, that a trial judge remains seized of the issues before her until a formal order or judgment is entered in the court record. There are several cases that stand for the proposition that a judge is not functus officio until the order is formalized. On the other hand, this does not mean that trials should be converted to rolling ongoing interminable hearings. Once the court has released a decision, it would be a rare case where it might be in the interests of justice to withdraw reasons of the court and to rehear the case on the merits. I make this point simply to emphasise that in certain circumstances a trial judge could re-open the hearing even if she had released her reasons. The trial is not technically concluded until the judgment is entered. In my view the trial is still in progress.

21. Generally speaking a party must marshal all of its evidence and present it during the trial. The party is not permitted to try to bring more evidence to bolster its case after that party's case is closed. It is for that reason that rules and principles have evolved concerning this issue of re-opening the case. Justice Mackinnon referred to them when she gave leave to the applicant to re-open his case in April. She referred with approval to the factors outlined in Hughes v. Roy. Amongst those factors are whether the evidence is relevant, necessary and reliable, whether it could have been obtained before the trial by the exercise of reasonable diligence and whether it would cause a miscarriage of justice if the new evidence were not accepted.

[36] In Qit Fer et Titane Inc. v. Upper Lakes Shipping Ltd and Hopkins Steel Works, 1991 7297 (ON SC), [1991] O.J. No. 733 ("Qit Fer"), at para. 12, Gravely J. summarized the principles to be applied by the court in deciding whether to re-open the evidence as follows:

1. Until judgment has been entered, a trial judge has a discretion to reopen the trial and hear fresh evidence.

2. In exercising such discretion the judge should be guided by the twofold test: that the evidence would probably have changed the result at trial and it could not have been discovered by reasonable diligence.

3. 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.

4. The power should be exercised sparingly. The court should discourage unwarranted attempts to bring forward evidence available at the trial to disturb the basis of a judgment delivered or to permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof.

5. Once a litigant has obtained a judgment, he is entitled not to be deprived of it without very solid grounds.

[37] With those principles in mind, and keeping in mind as well the principles set out in Rule 2(2) of the Family Law Rules, I turn to the issues here.

Issue 1: Should the Court permit Legal Aid Ontario to present evidence that it did not receive a copy of Dr. Yau's Report shortly after it was released to Mr. Thomson in January 2015?

[38] For the reasons which follow, I have decided that LAO has not met the required test to have the evidence regarding the receipt of Dr. Yau's report re-opened.

The Decision does not contain a "Mistake"

[39] A "mistake" under Rule 25(19)(b) is generally considered to mean a clerical slip or error, or something which happens inadvertently. In Kaplan v. Kaplan, 2015 ONSC 1277, McDermot J. of the Superior Court had this to say about how the rule should be interpreted:

118. Under the rule, and in the circumstances of this case, the only possible basis for setting aside the order would be paragraph (b) (mistake). This has been interpreted to mean clerical slip or error; it does not include a judge's mistake as to the law or facts which would be the province of an appeal. There is no evidence before me that the order contains a mistake.

[40] In Hunter v. Hunter, 2005 CarswellOnt 7478, Gordon J. of the Superior Court interpreted the word "mistake" in Rule 15(14) (the predecessor rule to Rule 25(19)) as follows:

14. Mistake, within the context of Rule 15(14) and Rule 59.06, refers to technical errors due to inadventure or oversight, such as clerical error or accidental slip or omission: see Clarke v. Clarke (2001), 2002 78088 (ON SC), 32 R.F.L. (5th) 282 (S.C.J.), and Bemrose v. Fetter, 2005 27895 (ON SC), [2005] O.J. No. 3362, 2005 CarswellOnt. 3481 (S.C.J.). Such is not the case here; rather, the mistake is by counsel in not complying with the court's direction. Accordingly, I am of the view Rule 15(4)(b) does not assist the moving party.

[41] Rule 25(19)(b) has been applied, among other things to: a change to the value of a pension (and resulting equalization payment) because of a calculation error by the pension plan administrator (see Stephens v. Stephens, 2016 ONSC 367), and to correct a failure to include certain terms in a divorce order due to a mistake made by subsequent counsel after the initial solicitor left the firm (see Henderson v. Henderson, 2015 ONSC 2914).

[42] In my view the presumption that LAO had been in receipt of the Yau report since about January 2015 does not constitute a "mistake". It did not result from a clerical slip or error, nor did it constitute an accidental slip or omission. The presumption was based on (1) a consideration of the evidence before the court and (2) the written and oral submissions of counsel. A significant factor which contributed to this presumption was Legal Aid's decision not to refute or even bring into question the accuracy of the presumption when it was put forward by the Applicants in their written and oral submissions.

[43] With respect to the evidence before the court, the evidence included the following:

a) LAO had provided Ms. Worrod's counsel with the authority to requisition the report;

b) LAO had provided payment for the report;

c) The report was released to Ms. Worrod's counsel in January 2015;

d) The report was significant; it spoke directly to Kim's capacity to marry;

e) There are reporting and accountability requirements in place between LAO and the lawyers who are paid by LAO to provide legal services. These are set out in in the Legal Aid Services Act and more particularly in the Tariff and Billing Handbook.

[44] With respect to the written and oral submissions, the Hunts' costs submissions were served on LAO on or about December 20, 2017. In para. 30 of these submissions the Applicants submitted that LAO should have been in receipt of the report by January 12, 2015. In para. 32 they submitted that, based on the contents of the Yau report, LAO "was effectively put on notice that Ms. Worrod's case was seriously flawed, that it was being pursued against an incapable person, and that it would cause a grievous financial injury to Kim". They also submitted in para. 32 of their submissions that Mr. Thomson knew or ought to have known those facts and communicated them to LAO.

[45] In my view, the presumption by the Applicants in their costs submissions that LAO had received a copy of the report was not unreasonable. The report addressed the main issue in the case, which was Mr. Hunt's capacity. The report was paid for by LAO. The reporting and accountability provisions which govern the relationship between a legal aid lawyer and LAO suggest that the report, or at least a summary thereof, would have been provided by Mr. Thomson to Legal Aid forthwith.

[46] In their February 9, 2018 factum the Hunts repeated the allegations made in their original costs submissions that Legal Aid should have been in possession of Dr. Yau's report in early 2015, that the report supported the Applicants' position that Kim lacked capacity and that the contents of this report should have caused LAO to question and review the merits of Ms. Worrod's case.

[47] LAO filed its factum on or about February 16, 2018. It did not refute or question the presumption that it was in receipt of Dr. Yau's report in January 2015 in its factum.

[48] These same allegations were repeated in reply submissions filed by the Hunts, where they stated at footnote no. 7 that "it is also important to note that Kathleena, Mr. Thomson and LAO were aware of the expert report of Olivia Yau funded by LAO, which supported the applicant's position."

[49] At a subsequent case conference on March 2, 2018 it was determined that all respondents were entitled to file written materials in response to reply submissions filed by the Hunts. Once again, LAO did not file reply submissions denying or questioning LAO's presumption that LAO received the report in January 2015.

[50] Counsel for Legal Aid attended at court on March 20, 2018 and made oral submissions in response to the claim for costs by the Hunts. The presumption was not refuted or questioned by LAO's counsel during oral submissions.

[51] In summary, the Applicants had made it clear in their written and oral submissions that their claim against LAO was based to a significant degree on their belief that LAO had been in the possession of the Yau report since January 2015. LAO had a period of three months, from the time it received the Applicants' original costs submissions to the date of the hearing to issue some form of denial that they had not received Dr. Yau's report in January 2015, or to bring into question the accuracy of the presumption. No such denial was ever made by LAO, and at no time did it question the accuracy of the presumption.

[52] The Hunts argue that failure by LAO to address this presumption was intentional and strategic. Clearly, the failure by LAO to be apprised of the contents of this very significant report until May 29, 2017, which was only days before the commencement of the trial, reflected adversely on LAO's duty to monitor the proceedings and to maintain regular and informed communications with Mr. Thomson. Whatever the reason, I agree that the evidence points to the fact that LAO's failure to question or deny the presumption was intentional and deliberate.

[53] In conclusion, it is my view that the presumption reached by the court was not due to inadvertence, it was not accidental and it did not result from a mistake. In the circumstances, it would be contrary to the interests of justice and unfair to all other parties to now re-open the evidence and permit LAO to address an issue it had ample opportunity to address prior to judgment. As per the caution of Gravely J. in Qit Fer, supra, to allow the evidence in at this point of the proceedings would "permit a litigant after discovering the effect of a judgment to re-establish a broken-down case with the aid of further proof".

LAO was put on Notice that the Applicants intended to argue that the Court should use the Presumptions to make Adverse Findings of Fact against LAO

[54] LAO submits that LAO was caught unaware because the Hunts failed to indicate that the presumptions would be used to argue that LAO engaged in an abuse of process and bad faith. I disagree.

[55] At para. 71 of the factum they filed in support of their claim for costs, the Hunts made reference to Polowin J.'s comments at para. 60 in Beattie v. Ladouceur, [2002] O.J. No. 5501 where she stated that the court would be inclined to exercise its inherent jurisdiction to order costs against LAO if it is "satisfied that Legal Aid Ontario acted in a manner that was improper, vexatious, unconscionable or in bad faith". This paragraph in their factum was followed by paragraphs which contained specific allegations of improper conduct by LAO, including a reference to the registering of the legal aid lien on Mr. Hunt's property in the face of the PGT Restriction and a reference to the fact that LAO "should have been in receipt of (Dr. Yao's) report in early 2015.

[56] Also, during oral submissions at the costs hearing there was discussion about what was meant by Polowin J.'s reference to improper and bad faith conduct.

[57] In my view, LAO was well aware that these presumptions would be used to make adverse findings that LAO had acted improperly.

LAO did not accept the Applicants' invitation to submit further factual evidence

[58] LAO argues that it was prejudiced because it did not have an opportunity to file evidence in support of its position in relation to costs. It submits that fairness requires that an order be granted allowing it to introduce such evidence now.

[59] I note that in its factum of February 9, 2018, the Hunts' raised the issue of whether further evidence would be required prior to a costs decision being rendered. Specifically, para. 96 of their factum states:

96. Should this Honourable Court believe a more fulsome evidentiary record is required to assess the breakdown between LAO or Mr. Thomson prior to making a decision, the Applicants do not oppose the filing of affidavits, examinations for discovery or another evidentiary processes being directed at the discretion of this Honourable Court, if the court finds it necessary to do so. However, the costs of the proceeding, even the cost submissions continue to bear stress, cost, and emotional distress on the family in this proceeding.

[60] In its responding costs factum of February 16, 2018, LAO did not indicate that further evidence was required in order for LAO to properly respond to the allegations against them.

[61] Two case management teleconferences were held following the receipt of the Applicants' costs submissions to discuss the steps which needed to be taken prior to the scheduling of an oral hearing. At no time did LAO, or any of the other parties, request an opportunity to file affidavits, conduct examinations for discovery or conduct any other evidentiary process.

[62] In conclusion, LAO had the opportunity to request an opportunity to conduct further evidentiary processes, through the filing of affidavits or otherwise. It decided not to do so. In my view, the time to request such additional evidentiary processes was prior to the hearing, at one of the case conferences, and not after the decision was rendered. To re-open the evidence at this time would open the door to continuous post judgment litigation and expense in cases such as this, and would provide parties with the opportunity to put forward different theories and employ alternative trial strategies after judgment. Clearly this is not desirable.

The Evidence that LAO wishes to introduce is not Fresh Evidence

[63] Rule 25(19) of the Family Law Rules does not specifically provide for changes to orders based on facts discovered since the making of the order. In contrast, Rule 59.06(2) of the Rules of Civil Procedure provides that a party who seeks to have an order set aside on the ground of facts arising or discovered after it is made may make a motion to the court.

[64] In the event Rule 59.06(2) applies to the circumstances of this case, I do not believe that Rule 59.06(2) assists LAO.

[65] The test for setting aside an order on the basis of fresh evidence includes a requirement that the evidence could not have been obtained before trial by the exercise of reasonable diligence: see Mehedi v. 2057161 Ontario Inc. 2015 ONCA 670.

[66] In my view, LAO cannot meet this requirement. The date it received the Yau report was known to LAO at the time the court received the submissions on costs. It is not fresh evidence. Also, although Ms. Worrod has now waived privilege and LAO is now in a position to enter evidence which was formerly the subject of such privilege, LAO admits that it did not request Ms. Worrod to waive privilege until after it received my costs decision. In the circumstances, I find that it did not exercise reasonable diligence in attempting to obtain the right to use this evidence.

The introduction of this evidence would probably not have changed the result

[67] One of the principles which should guide the court in considering whether to re-open evidence following a decision includes a consideration of whether the evidence would have changed the result: see Qit Fer, supra. Not every "mistake" justifies the re-opening of evidence.

[68] If LAO had led evidence that it did not receive Dr. Yau's report until shortly before trial, I cannot say that this evidence would probably have changed the result of my costs decision.

[69] LAO authorized Ms. Worrod's counsel to requisition the report and it paid for this report. If the evidence revealed that LAO continued to provide funding to Ms. Worrod without requesting a copy of the report it had authorized and paid for, or even requested a summary thereof from Ms. Worrod's counsel, this would have constituted further evidence that LAO did not carry out its duty to monitor the file and maintain meaningful communications with Mr. Thomson.

[70] For the above reasons, I am not prepared to make an order permitting LAO to present further evidence with respect to the date it received Dr. Yau's report. There has been no miscarriage of justice in this case.

Issue 2: Should the Court permit LAO to present evidence to refute the presumption that it received notice of the Certificate registered by the Office of the Public Guardian and Trustee?

[71] For the reasons which follow, I have decided that LAO has not met the required test to allow it to introduce evidence to refute the presumption that it received notice of the Certificate registered by the PGT at the time it registered its legal aid lien.

[72] Firstly, I am not convinced that this presumption constitutes as "mistake" as generally defined in the context of a Rule 25(19) motion. The presumption that LAO had been notified of the existence of the prior registered certificate was not the result of an "accidental slip" or a "clerical slip or error". In the absence of any evidence to the contrary, it was not unreasonable for the court to presume that LAO would have undertaken at the very least a cursory review of the title to the property when it decided to encumber the property by registering its lien. This does not constitute an "accidental slip or omission".

[73] Secondly, in my view the admission of this evidence would not have changed my decision. As already noted, not every "mistake" justifies the re-opening of evidence.

[74] In this case, the presumption was referred to in order to establish that LAO knew that Kim was a vulnerable person. Whether LAO knew on September 16, 2011 (the date it registered its lien) that the Restriction had been registered, or whether it did not become aware of the registration until it was requested to remove its lien by the Applicants on December 13, 2016, it is clear that LAO knew, or should have known that it was dealing with a vulnerable person from early on in the litigation. The title of proceedings, in which Bradley and Justin are referred to as Court-Appointed guardians reveals as much, as does the nature and content of the pleadings. The request to fund a capacity assessment by Dr. Yau, which would also have served as notice to LAO that Mr. Hunt was a vulnerable person, was made in 2014.

[75] Thirdly, although given the opportunity to do so, LAO did not refute this presumption which was referenced at para. 74 in the Hunts' factum as follows:

74. Additionally, the Lien was registered in clear and unequivocal contravention of the Restriction put on title by the PGT on September 16, 2011. Notwithstanding the Restriction, the Lien was subsequently registered by LAO without notice to the Applicants or the PGT. This was clearly improper. The Restriction itself would have put LAO on notice that the interests of a vulnerable person were to be protected and would be impacted by this litigation. The inadvertence or deliberate approach by LAO was clearly not justified or prudent.

[76] Notwithstanding the allegations of impropriety made by the Hunts in the aforementioned paragraph, this allegation was not challenged by LAO in its responding factum. Clearly, an admission by LAO that it was not aware that it was dealing with a vulnerable person, or that it did not make an effort to review the title to the property, would have reflected poorly on LAO's duty to monitor the file. Whatever the reason for its failure to rebut this presumption in its costs submissions, it is my view that it would not be fair to allow LAO to buttress its position by allowing it to re-open the evidence after the costs decision has been made.

[77] LAO was requested to remove the certificate by the lawyers for the Hunts on December 13, 2016. It is indisputable that LAO had notice of the Restriction after this date. I note as well that the Applicants only claimed costs from the time they retained Wel Partners as counsel, which was in September, 2016. Virtually all of the costs fixed against LAO were incurred after December 13, 2016.

[78] In conclusion, whether or not LAO received actual notice of the prior registered certificate at the time it registered its lien or at some later date, this would not have changed the costs decision.

[79] Accordingly, I am not prepared to re-open the evidence to determine the actual date that LAO received notice of the PGT certificate.

DECISION

[80] For the above reasons, I am dismissing the motion by LAO to re-open the evidence.

COSTS

[81] If the parties cannot agree on costs, they are to file written submissions within 10 days of the release of this decision. Thereafter, they have 10 days to reply to each other's submissions. The written submissions are to be a maximum of 3 pages, plus exhibits and enclosures.

KOKE J.

Released: May 24, 2018