



COURT OF APPEAL
    FOR ONTARIO

CITATION: Malkov v. Stovichek-Malkov, 2018 ONCA 620

DATE: 20180709

DOCKET: C64667

Feldman, Hourigan and Brown JJ.A.

BETWEEN

Dmitri Malkov

Applicant (Respondent)

and

Natalia
    Stovichek-Malkov

Respondent (Appellant)

and

Mikhail Malkov

Respondent (Respondent)

Robert G. Schipper and John Freeman, for the appellant

Leonard Susman, for the respondent Mikhail Malkov

Heard: July 3, 2018

On appeal from the
    order of Justice Heather A. McGee of the Superior Court of Justice, dated November
    15, 2017, with reasons reported at 2017 ONSC 6822.

REASONS FOR
    DECISION

I.

OVERVIEW

[1]

The appellant, Natalia
    Stovichek-Malkov, appeals from the order of the trial judge (i) declaring that
    her former father-in-law, the respondent Mikhail Malkov, is the sole beneficial
    owner of 41 Arnold Avenue, Thornhill (the Property) and (ii) requiring Natalia
    and her former husband, Dmitri Malkov, to transfer all of their right, title
    and interest in the Property to Mikhail.

[2]

The trial judge found that Natalia
    and Dmitri held title to the Property on a resulting trust in favour of
    Mikhail, who is the sole owner of the Property.


II.

THE GROUND OF APPEAL

[3]

Natalia advances a single ground
    of appeal: she submits the trial judge did not conduct the proceedings in a
    fair manner because she refused to allow Natalia to call as a witness Janna
    Donskoy, the lawyer who acted on the purchase of the Property.


III.

THE TRIAL PROCESS

[4]

A brief of chronology of the
    events concerning the trial is required to assess this ground of appeal.

[5]

As a result of trial management
    directions, the trial of the property and support issues was bifurcated from
    that for custody issues.

[6]

At the start of the
    property/support issues trial on May 30, 2017, the trial judge proposed that
    the parties put in their cases in the following order: Mikhail, Natalia, and
    then Dmitri, followed by closing submissions. Counsel agreed to this sequence.

[7]

Although Mikhail had indicated on
    the Trial Scheduling Endorsement Form (the Form) that he would be calling Ms.
    Donskoy as a witness, during his cross-examination on the second day of trial, May
    31, 2017, his counsel advised that he would not. Natalia then put in her case,
    and did not seek to call Ms. Donskoy. Dmitri then put in his case-in-chief on
    June 2, 2017.

[8]

The continuation of the trial was
    put over until September 18, 2017. At that time, Natalias counsel advised the
    court that he had issued a summons to Ms. Donskoy in June and intended to call her
    as a witness. He informed the court that he had not talked with Ms. Donskoy
    about the substance of her potential evidence nor did he otherwise know what
    her evidence would be. Counsel stated he was aware that none of Mikhail, Dmitri
    or Natalia had waived privilege in respect of any conversations they might have
    had with Ms. Donskoy.


IV.

THE TRIAL JUDGES RULING

[9]

Noting that Natalia did not have a right to call reply evidence because
    she had not led her evidence first, the trial judge treated her advice that she
    intended to call Ms. Donskoy as a request to reopen her case. The trial judge
    observed that the
Family Law Rules
, O. Reg. 114/99, did not address
    such a situation, which led her to consider two of the
Rules of Civil
    Procedure
,
R.R.O. 1990, Reg. 194,
that
    covered analogous circumstances  rules 52.10 and 53.01(3).

[10]

Rule 52.10(a) provides that
    [w]here, through accident, mistake or other cause, a party fails to prove some
    fact or document material to the partys case, (a) the judge may proceed with
    the trial subject to proof of the fact or document afterwards at such time and
    on such terms as the judge directs. Rule 53.01(3) states that a trial judge
    may at any time direct that a witness be recalled for further examination.

[11]

The trial judge stated that Natalia
    did not frame her request as one based on an accident or mistake. She pointed
    out that Natalia had every opportunity back in May and June to call Ms.
    Donskoy. The trial judge then turned to what she considered was the heart of
    the matter, stating:

Materiality is the place where this motion must fail. Even
    three months after the closing of his case, [Natalias counsel] cannot say what
    the evidence [of Ms. Donskoy] will be or if it would be relevant. It may not
    even be available due to solicitor-client privilege. His client has not waived
    her privilege, which would be a prerequisite to calling the witness. Its an
    end right there

To allow [Natalia] to reopen her case to call a witness who, at
    this point, has no discovered evidence to provide would, and I dont say this
    lightly, be an abuse of process. Trials have a beginning, a middle, and an end.


V.

ANALYSIS

[12]

Natalia submits the trial judge
    did not apply a sufficiently detailed test when considering her request to
    reopen her case. The trial judge relied on the decision in
Scott v.
    Cook
, [1970] 2 O.R. 769 (H.C.), which held
    that on a motion to reopen trial proceedings, the requesting party must show
    that the evidence sought to be adduced is such that, if it had been presented
    during the trial, it probably would have changed the result.

[13]

Natalia
    contends the more appropriate test to be applied in the context of family law
    proceedings is that set out in
Catholic Childrens Aid Society of Toronto
    v. M.R.
, 2014 ONCJ 762,
64 R.F.L. (7th) 470
.
    In that case, as in the present one, the request to reopen the case was made
    before the judge had given reasons for judgment, in contrast to
Scott
where the request was made after reasons for judgment had been delivered but
    before formal judgment had been entered.

[14]

In
Catholic Childrens Aid Society of Toronto
, the court stated, at para.
    17:

Factors which a court will consider in civil cases in
    determining whether to allow a plaintiff to re-open are set out below:

·

At what stage of the trial is the motion made?

·

Why was evidence not adduced during the partys case? Did the
    party intentionally omit leading the evidence earlier? Or did the evidence only
    recently come to the partys attention, despite diligent earlier
    efforts?

·

What is the prejudice to the defendant?  A defendant might
    have conducted his case differently if he had known and had an opportunity to
    investigate the evidence which is the subject of the motion.

·

Can any prejudice be remedied in costs?

·

How would a reopening of the case affect the length of the
    trial?  How much evidence would have to be revisited?

·

What is the nature of the evidence? Does it deal with an issue
    which was important and disputed from the beginning, or with a technical or
    non-controversial point?  Does it merely shore up evidence led in chief?

·

Is the proposed new evidence presumptively credible? [Footnotes
    omitted.]

[15]

We agree that the
Catholic
    Childrens Aid Society of Toronto
case provides
    a helpful list of factors for a trial judge to consider when entertaining a
    partys request to reopen her case. In our view, when the reasons of the trial
    judge for her ruling are read as a whole, they disclose that she took into
    account the factors most relevant to the specific circumstances of the case.

[16]

In her ruling, the trial judge
    expressed concern that Natalia was seeking to reopen her case towards the end
    of the trial notwithstanding that: (i) all parties had agreed on the sequence
    in which they would call their cases; and (ii) Mikhail had disclosed, before
    Natalia opened her case, that he would not be calling Ms. Donskoy. As the trial
    judge stated, every opportunity was available for this witness to be called by
    [Natalia].

[17]

The trial judge reasonably placed
    considerable weight on the nature or materiality of the proposed evidence. Natalia
    was unable to identify for the trial judge what relevant evidence Ms. Donskoy
    could offer if allowed to testify. Natalias counsel had not tried to interview
    Ms. Donskoy to ascertain what she might say. Nor had Natalia sought to call Ms.
    Donskoy back in May when it became apparent Mikhail did not intend to call her
    as a witness.

[18]

Significantly, Natalia has not
    sought leave to adduce on this appeal fresh evidence that describes Ms.
    Donskoys potential testimony. We are left in the same position as the trial
    judge found herself  we do not know what Ms. Donskoy might say.

[19]

However, Natalia contends that the
    language in the Form weighs strongly in her favour. In the section where
    Mikhail listed the witnesses he intended to call, which included Ms. Donskoy,
    the Form states: By naming a witness below, the party undertakes to make the
    witness available to the other party without summons even if the party decides
    not to call the witness. Given that language, Natalia argues that the trial
    judge failed to give appropriate consideration to Mikhails decision not to
    call Ms. Donskoy.

[20]

We are not persuaded by this
    submission. By listing a witness on the Form, a party does not undertake to
    call that witness but only to make the witness available to the other party
    without summons in the event the listing party decides not to call the witness.
    In the present case, Mikhails counsel advised that he would not call Ms.
    Donskoy. At that stage of the trial, the undertaking in the Form offered
    Natalia a mechanism by which she could secure Ms. Donskoys evidence for her
    case without summons, but she did not avail herself of the opportunity.
    Instead, she waited several months until the resumption of the trial to request
    reopening her case.

[21]

Given Natalias lack of forensic
    diligence regarding Ms. Donskoys evidence and the absence of any evidentiary
    basis to suggest the lawyers evidence probably would have an important
    influence on the result of the case, we see no error in the cost/benefit and
    fairness analysis conducted by the trial judge that led her to exercise her
    discretion to refuse Natalia leave to call Ms. Donskoy.


VI.

DISPOSITION

[22]

For the reasons set out above, we dismiss
    the appeal.

[23]

Based on the agreement of the
    parties about the costs of the appeal, Natalia shall pay Mikhail his costs of
    the appeal fixed in the amount of $26,000, inclusive of disbursements and all
    applicable taxes.

K.
    Feldman J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


