



COURT OF APPEAL FOR ONTARIO

CITATION: Mehedi v.
    2057161 Ontario Inc., 2015 ONCA 670


DATE: 20151006

DOCKET: C59772

Cronk, Lauwers and van Rensburg JJ.A.

BETWEEN

Golam Mehedi

Appellant

and

2057161
    Ontario Inc. (c.o.b. Job Success), M.A. Hameed,

Wendell
    Lacombe and Dale Smith

Respondents

Golam Mehedi, acting in person

Ranjan K. Agarwal and Joseph Marcus
appearing as
amicus curiae

Dale Smith, acting in person and as agent for all
    respondents

Heard: September 4, 2015

On appeal from the order of Justice Kevin Whitaker of the
    Superior Court of Justice, dated November 21, 2014.

Lauwers J.A.:

[1]

The motion judge refused an order under rule 59.06 of the
Rules of
    Civil Procedure
, R.R.O., 1990, Reg. 194 permitting the appellant to lead
    new evidence after the dismissal of his claim by the trial judge. The evidence,
    if accepted, could cast doubt on the veracity of the testimony of the
    respondents on which the trial judge relied. The circumstances are most
    unusual. For the reasons set out below, I would allow the appeal.

The Trial Decision

[2]

According to the appellant, the respondents, operating as Job Success,
    promised to find him a job paying $70,000 per year within two months; he paid
    them a fee of about $3,700.  He sued when they were unable to find him the job.

[3]

The trial judge dismissed the case for oral reasons given on June 23,
    2011. He accepted the trial testimony of the respondents Hameed and Lacombe,
    whom he found to be credible witnesses. He stated: On the evidence before me,
    there is no basis for a finding that Job Success or any of the defendants made
    any promises or commitments to Mr. Mehedi that they did not fulfill.

[4]

The trial judge added:

Mr. Mehedis understanding of the commitment he claims they
    made to him is not supported by any independent evidence and, in my view, it is
    unrealistic and unreasonable under the circumstances.  Although Mr.  Mehedi
    may honestly believe he was given the commitment he testified he had received,
    there is no reasonable basis for his belief and it is not supported by either
    the
viva voce
or documentary evidence.

[5]

The trial judge specifically found there was never a promise to find
    the plaintiff a job within any specified time frame or at any specified salary
    range.

[6]

This court dismissed  the appellants appeal from the trial judgment by
    way of endorsement on January 23, 2012:
Mehedi v. 2052761 Ontario Inc.
,
    2012 ONCA 46.

The Proposed New Evidence

[7]

Shortly after this courts decision, the CBC broadcast an episode of the
    television program
Marketplace
, which put into question the evidence
    given by the respondents at the trial.  The appellant moved before this court for
    directions on the procedure for introducing fresh evidence, since the trial
    decision had been upheld on appeal.  In his ruling on the motion, Juriansz J.A.,
    sitting in chambers, explained the situation, at paras. 5-6:

On February 17, 2012, the CBC broadcast an episode of
Marketplace
titled "Recruitment Rip-off".
Marketplace
, using hidden
    cameras, purports to expose how a recruitment agency, carrying on business as
    "Toronto Pathways", exploits vulnerable unemployed persons by
    promising to find them good jobs in exchange for fees. The clients shown in the
    program are mainly unemployed immigrants newly arrived in Canada. The program
    shows Dale Smith acknowledging that "Toronto Pathways" and "Job
    Success" are the same business. Mr. Smith, the owner, states, "It is
    the same corporation. Same address. Brand marketing is the only reason for the
    change.... Brand marketing just allows a fresh market approach." The
    program states that the company has changed business names five times in seven
    years.

The program purports to show company officials unequivocally
    promising prospective clients that they will be provided good jobs to induce
    them to enter contracts. The defendant Mr. Lacombe is shown being asked by a
Marketplace
staffer, "So you're basically guaranteeing me that I'm going to get a
    job?", and responding, "Absolutely. And we are very good at it."
    The witness Mr. MacKay is also shown in the program. The program also shows
    numerous other individuals who make essentially the same allegations as Mr. Mehedi.

See
Mehedi v. 2057161 Ontario Inc. (c.o.b. Job
    Success)
, 2014 ONCA 604.

[8]

Justice Juriansz directed the appellant to bring a motion to adduce
    fresh evidence and re-open the trial. Since the trial judge had declined to
    hear the motion because he had been assigned to criminal court, Juriansz J.A.
    directed that the motion be brought before a motion judge of the Superior Court
    in the ordinary way. The appellant then brought a motion to introduce as new
    evidence the
Marketplace

report, as well as an article in the
Metro

newspaper recounting similar statements apparently made by the respondent Dale
    Smith, to a reporter who was posing as a Job Success customer.

The Motion Judges Decision

[9]

On November 20, 2014, the motion judge dismissed the appellants motion. 
    His reasons, in their entirety, read:

On July 30, 2014, Juriansz J.A. in chambers directed the
    plaintiff to bring a motion in the normal course regarding the admission of new
    evidence and a new trial as a result.  I am not persuaded that this is an
    appropriate case to exercise my discretion to reopen this matter that had already
    been tried by Justice Himel [Hainey].  Even if the new evidence was allowed, I
    do not believe that that would reasonably affect the outcome. The action [
sic
]
    is dismissed. Costs to the defendant of $500.00 payable forthwith. Order as
    appropriate.

[10]

The
    appellant appeals the motion judges dismissal of his motion, and invokes both
    rule 59.06 of the
Rules of Civil Procedure
and the courts inherent
    jurisdiction.

[11]

Rule
    59.06(2)(a) of the
Rules of Civil Procedure
provides:

A party who seeks to, (a) have an order set aside or varied on
    the ground of fraud or of facts arising or discovered after it was made;  may
    make a motion in the proceeding for the relief claimed.

The Standard of Review

[12]

A motion judges decision
    under rule 59.06(2)(a) is discretionary and attracts considerable deference
    from a reviewing court, unless
the
    motion judge errs in principle, misapprehends or fails to take account of
    material evidence, reaches an unreasonable decision (
Young v. Tyco
    International of Canada Ltd.
, 2008 ONCA 709),
    or if the reasons do not set out the judges reasoning process and reflect
    consideration of the main relevant factors:

R. v. Sheppard
, 2002 SCC 26;
Diamond Auto Collision
    Inc. v. Economical Insurance Group
, 2007 ONCA 487, at paras. 11-12;
Barbieri
    v. Mastronardi
, 2014 ONCA 416, at paras. 22-23.

Analysis

[13]

The
    test under rule 59.06(2)(a) to re-open a trial that applies
after
the
    judgment or other order has been issued and entered was set out by Doherty J.A.,
    speaking for the court, in
Tsaoussis (Litigation Guardian of) v. Baetz
(1998), 41 O.R. (3d) 257, [1998] O.J. No. 3516, at paras. 41 and 44. As he
    noted, the onus is on the moving party to show that all the circumstances justify
    making an exception to the fundamental rule that final judgments are exactly
    that, final. In particular, the moving party must show that the new evidence
    could not have been put forward by the exercise of reasonable diligence at the
    original proceedings. The court will go on to evaluate other factors such as
    the cogency of the new evidence, any delay in moving to set aside the previous
    judgment, any difficulty in re-litigating the issues and any prejudice to other
    parties or persons who may have acted in reliance on the judgment.

[14]

In this case, the motion
    judges reasons for refusing to re-open the trial are inadequate. While he briefly
    states what he views as the appropriate test, the motion judge does not
    describe the proposed new evidence or relate the test to it. He does not
    explain why the new evidence fails to meet the test, or why it would not, in
    his words, 
reasonably affect the outcome,
given the critical importance of the trial testimony
    of
the respondents, Hameed and Lacombe,
to the trial judges decision. In the result, this court is unable to
    meaningfully review the basis for his dismissal of the appellants motion.

[15]

In
    my view, the appellant has met the test under rule 59.06(2)(a) as articulated
    in
Baetz
.
It is plain that the proposed new evidence was not
    available at the time of the first trial or the first appeal. The appellant did
    not delay in seeking relief.  The new evidence is cogent, in that it is
    apparently credible and, if accepted, would probably have affected the result
    at trial; the new evidence could serve to undermine the evidence given by the
    respondents and bolster that of the appellant. That is because the video shows representatives
    of Job Success apparently making the same or similar promises to others that
    the trial judge found to be unrealistic and unreasonable with respect to the
    appellant. Finally, I see no prejudice to the respondents if the trial were
    re-opened.

[16]

Amicus
submits that the motion judge erred in applying the test for re-opening a trial
    described by the Supreme Court of Canada in
671122 Ontario Ltd. v. Sagaz
    Industries Canada Inc.
,
2001 SCC 59, [2001] 2 S.C.R. 983. The
Sagaz
test was articulated in a
    case in which the judgment at issue had not yet been issued and entered. In the
    present case, while no formal judgment was taken out, the trial decision had
    been appealed.
Amicus

asserts that the motion judge ought to
    have applied the
Baetz

test, which includes the consideration
    of a number of different factors, including balancing fairness against the
    interest in finality.

[17]

In
Sagaz
, the Supreme Court accepted, at paras. 20 and 64, the motion
    judges application of the two-part test for re-opening a trial described by
    the High Court in
Scott v. Cook
, [1970] 2 O.R. 769:

First, would the evidence, if presented at trial, probably have
    changed the result?  Second, could the evidence have been obtained before trial
    by the exercise of reasonable diligence?

[18]

Courts
    citing
Sagaz
often seem to boil the test down to these two questions
    (see, for example,
1057854 Ontario Inc. v. Kara Holdings Inc
.
,
    [2005] O.J. No. 1144, at para. 40;
Wesbell Networks Inc. (Receiver of) v.
    Bell Canada
, 2013 ONSC 7814;
Irving Shipbuilding Inc. v. Schmidt
, 2014
    ONSC 5089, at para. 57;
Madock v. Grauer
, 2010 BCSC 1709). However,
    the Supreme Court, at para. 60, added this important direction: Appellate
    courts should defer to the trial judge who is in the best position to decide
    whether, at the expense of finality, fairness dictates that the trial be
    reopened. Plainly then, fairness is also an important factor, including
    prejudice to others who have acted in reliance on the judgment, as
Baetz
notes.

[19]

I
    further note that in
Sagaz
,
the Supreme Court, at para. 63, approved
    the following comments by Lord Denning in
Ladd v. Marshall
, [1954] 1
    W.L.R. 1489 (C.A.), at p. 1491:

It is very rare that application is made to this court for a
    new trial on the ground that a witness has told a lie. The principles to be
    applied are the same as those always applied when fresh evidence is sought to
    be introduced.
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
.
[Emphasis added.]

[20]

In
    my view, properly understood, the test in
Sagaz
goes beyond the two
    questions of whether the new evidence, if presented at trial, would probably
    have changed the result, and whether the evidence could have been obtained
    before trial by the exercise of reasonable diligence. It includes
    considerations of finality, the apparent cogency of the evidence, delay, fairness
    and prejudice, factors that were articulated by this court in its decision in
Baetz
.
    The error in this case was not in the motion judges decision to apply
Sagaz

rather than
Baetz
, but in his application of the test, as I have
    already described. In this case, the new evidence meets both the
Baetz
and
    the
Sagaz
tests for re-opening a trial

assuming there is any real distinction between the two.

Disposition

[21]

Because
    of the nature of the inquiry, a motion under rule 59.06(2)(a) to reopen a trial
    decision based on fresh evidence should be brought before the trial judge, who
    is in the
best
position to contextualize the fresh evidence and to direct the trial of an
    issue if appropriate:
Janjua v. Khan
, 2014 ONCA 5 at para. 11. See
Sagaz
,
    at para.60. This is the practice that should be followed unless there is some
    real impediment to the trial judge dealing with the motion.

[22]

I
    would allow the appeal, re-open the trial and remit the matter to the trial
    judge for reconsideration in light of the fresh evidence.  It will be for the
    trial judge to determine the admissibility of the new evidence and its effects,
    if any, on the merits of the case.

[23]

In
    the circumstances, I would set aside all previous cost orders against the
    appellant in this matter, including the costs of the first trial, the appeal to
    this court from the first trial judgment and the costs of the motion before the
    motion judge. It will be for the trial judge to determine appropriate costs
    dispositions, based on his reconsideration of the case.

[24]

I
    would also award the appellant $2,000 for the costs of this appeal, inclusive
    of disbursements and all applicable taxes.

Released:  October 6, 2015 PL

P.
    Lauwers J.A.

I
    agree E.A. Cronk J.A.

I
    agree K. van Rensburg J.A.


