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Judge grants application by employer to re-open wrongful dismissal trial to adduce fresh evidence about mitigation

Jurisdiction: - British Columbia

In Graham v. Galaxie Signs Ltd., 2010 BCSC 1655, the judge granted an application by the defendant employer to re-open a wrongful dismissal trial to adduce fresh evidence about the plaintiff former employees mitigation efforts 'following the termination of his employment.


The trial was held in October 2009 and continued in February 2010. The judge issued reasons for judgment on April 30, 2010.

The employer filed its application to re-open the trial on September 28, 2010. The formal order flowing from the reasons had not get been entered in the court by the parties.

Pursuant to its application, the employer submitted affidavit evidence that appended documents. The documents were discovered after the trial and purported to suggest that the plaintiff worked through the auspices of another sign company, Dickson's Signs Ltd. in arranging a sign for an entity named Cap-It, and that he was or should have been paid for these services. The court noted that the document appeared to be inconsistent with the plaintiff's evidence at discovery and trial.

The plaintiff also submitted an affidavit in which he stated that he received no remuneration of any kind for the assistance/services provided.

Legal Principles

The court noted that the principles that apply to an application to re-open a trial to addice fresh evidence where set out in Zhu v. Li, 2007 BCSC 1467, leave to
appeal to BC Court of Appeal dismissed, 2008 BCCA 239. They are as follows:

  1. Prior to the entry of the formal order, a trial judge has a wide discretion to re-open the trial to hear new evidence. 
  2. This discretion should be exercised sparingly and with the greatest care so as to prevent fraud and abuse of the court's process. 
  3. The onus is on the applicant to show first that a miscarriage of justice would probably occur if the trial is not re-opened and second that the new evidence would probably change the result. 
  4. The credibility of the proposed fresh evidence is a relevant consideration in deciding whether its admission would probably change the result. 
  5. Although the question of whether the evidence could have been presented at trial by the exercise of due diligence is not necessarily determinative, it may be an important consideration in deciding whether a miscarriage of justice would probably occur if the trial is not re-opened. 

Application of Legal Principles

Applying these principles to the facts at hand the judge noted that:

  • The formal order had yet not been entered;
  • The employer's fresh evidence appeared credible, and the plaintiff did not dispute it
  • A miscarriage of justice would probably occur if the trial is not re-opened.

Accordingly, the judge ordered that the trial be re-opened on the issue of the plaintiff's mitigation efforts as it relates to the two named entities. Specifically, he ordered that:

  1. the plaintiff be required to attend a further examination for discovery on the issue of mitigation over the notice  period as it relates to his relationship with
    the two named entities; and
  2. the employer be entitled to call additional witnesses at trial on the same issue.