What is the test for an application to reopen a personal injury trial after the close of trial has been argued and reply begun?

British Columbia, Canada


The following excerpt is from Surrey (City) v. Canada Safeway Ltd., 2005 BCSC 275 (CanLII):

The application will be allowed where a plaintiff has been misled by the defence put forward by the defendant so that the evidence led sets up a defence different from that set out in the pleadings. Where that is shown, a trial may be reopened to permit the plaintiff to adduce further evidence. In Sunny Isle Farms, supra, Nicholson J. stated: An examination of the foregoing authorities clearly establish that a trial Judge has discretion to admit further evidence after the close of the trial either for his own satisfaction or where the interest of justice requires it. This discretion has been exercised by trial Judges in many different situations and for different reasons and I am inclined to agree with the remarks of Romer, J., in the case of Barker v. Furlong (supra) [[1891] to Ch. 172] that where the counsel had not been misled by anything falling from the other side that “in granting the plaintiff’s application after the defendant’s case had been argued and closed and reply begun, I should be making a precedent, which would, if established, lead to an improper amount of laxity in conduct of plaintiff’s case.” However, in the case at bar the plaintiff has, in my opinion been misled by the defendant’s defence in that the evidence led by the defence sets up a defence different from that set out in the Pleadings. (at para 13)

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