Tuesday, October 27, 2015

Dangers of mid trial R 21 motion

Holgate v. Sheehan Estate, 2015 ONCA 717:

[28]       The issues raised by the appellants – albeit unsuccessfully – demonstrate the challenges and potential pitfalls involved when a r. 21 motion is entertained by a trial judge.  

[29]       In this case, the trial judge's initiative in inviting a mid-trial r. 21 motion was clearly designed to narrow the issues and streamline the trial.  These objectives are commendable. Unfortunately, however, the initiative produced the opposite result. The mid-trial motion resulted in a bifurcated trial, created the possibility for two appeals to this court arising from the same proceeding, and caused the completion of the trial to be delayed pending the outcome of this appeal. 

[30]       There is an additional concern.  A r. 21 motion concerning a question of law is based on the pleadings.  Evidence is not admissible except on consent or with leave of the court.  When a r. 21 motion is conducted by a trial judge after the evidentiary phase of the trial has commenced, there is a risk that incomplete or untested evidence can inadvertently seep – or be seen to seep – into the consideration of the motion on its merits.  While I am  satisfied that this did not occur in this case, the danger is nonetheless real.

Of the Law Societies of Upper Canada and Nunavut 

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