What is the test for re-opening a judgment before a judgment has been entered?

British Columbia, Canada


The following excerpt is from Aquiline Resources Inc. et al. v. Wilson et al., 2005 BCSC 1461 (CanLII):

In Cheema v. Cheema (2001), 89 B.C.L.R. (3d) 179, 2001 BCSC 298 [Cheema], Bennett J. reviewed extensively the more recent case law and summarized the position as follows: A trial judge may properly elect to exercise his or her unfettered discretion to re-open a case before a judgment has been entered and where no fresh evidence application is made, where material evidence was overlooked or misconstrued, there was a misapplication of the law, or to clarify ambiguous language. Additionally, non-entered judgments have been re-opened where there has been a change in circumstances such that the original order would not have been made had those circumstances been present. However, where the applicant is merely advancing an alternative argument that could have been made at the time of the original trial, this is not a proper basis upon which to reopen. The underlying rationale of the judge’s unfettered discretion to re-open is to prevent a miscarriage of justice. (¶25).

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