Fritschij v. Bazan, (2006) 203 Man.R.(2d) 291 (QBFD)

• Judge: Yard, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 28, 2006
• Jurisdiction: Manitoba
• Citations: (2006), 203 Man.R.(2d) 291 (QBFD);2006 MBQB 82

Fritschij v. Bazan (2006), 203 Man.R.(2d) 291 (QBFD)

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. AP.012

Maria Johanna Elizabeth Fritschij (petitioner) v. William Patrick Bazan (respondent)

(FD 95-01-41826; 2006 MBQB 82)

Indexed As: Fritschij v. Bazan

Manitoba Court of Queen's Bench

Family Division

Winnipeg Centre

Yard, J.

March 28, 2006.

Summary:

The parties' competing Notices of Motion were argued before the court and were the subject of determination by way of written reasons. The terms of the order were settled, but it was never submitted to the court for signing. The respondent filed a motion to reopen the case and to admit fresh evidence.

The Manitoba Court of Queen's Bench, Family Division, dismissed the motion.

Practice - Topic 5006

Conduct of trial - General principles - Reopening of trial to hear additional submissions or evidence - The parties' competing Notices of Motion were argued before the court and were the subject of a determination by way of written reasons dated July 28, 2005 - The terms of order were settled, but it was never submitted to the court for signing - The respondent moved to reopen the case and to admit fresh evidence (a psychological report dated November 16, 2006) - The Manitoba Court of Queen's Bench, Family Division, dismissed the motion - While the assessment observations, test results and assessor's impressions in the report were new in the sense that all of the work was done following the argument and judgment in this case, none of the facts behind any of them were new to the respondent when the case was prepared and presented - The respondent's health status was well known to him throughout and the evidence was reasonably discoverable at the time of the hearing - The fresh evidence sought to be introduced would also not have changed the result.

Cases Noticed:

Ridout v. Ridout (2003), 173 Man.R.(2d) 226; 293 W.A.C. 226; 2003 MBCA 61, refd to. [para. 3].

Ridout v. Ridout (2004), 187 Man.R.(2d) 148; 330 W.A.C. 148; 4 R.F.L.(6th) 147; 2004 MBCA 91, refd to. [para. 3].

Baird v. Baird and Cooper, [1977] 5 W.W.R. 72 (Man. C.A.), refd to. [para. 4].

Widrig v. Strazer Estate, [1964] S.C.R. 376, refd to. [para. 4].

Scott et al. v. Cook et al., [1970] 2 O.R. 769 (H.C.), refd to. [para. 5].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, appld. [para. 5].

Neusitzer v. GFK Capital Base Corp. et al., [2005] Man.R.(2d) Uned. 105; 2005 MBQB 265, refd to. [para. 5].

Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al. (1995), 106 Man.R.(2d) 172 (Q.B.), refd to. [para. 5].

Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432; [1934] 3 W.W.R. 257; 49 B.C.R. 28, refd to. [para. 6].

Assiniboine Credit Union Ltd. v. Tresoor et al. (2002), 171 Man.R.(2d) 135; 2002 MBQB 325, refd to. [para. 6].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 9].

R. v. Nielsen and Stolar (1984), 30 Man.R.(2d) 81 (C.A.), refd to. [para. 9].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 9].

R. v. P.F. (2004), 184 Man.R.(2d) 29; 318 W.A.C. 29; 2004 MBCA 1, refd to. [para. 9].

Kaban v. Sett, [1995] M.J. No. 483, refd to. [para. 11].

Melna v. Hall - see Hall Estate, Re.

Hall Estate, Re (2000), 148 Man.R.(2d) 128; 224 W.A.C. 128; 2000 MBCA 36, refd to. [para. 11].

Child and Family Services of Winnipeg v. J.M.F. et al. (2000), 153 Man.R.(2d) 90; 238 W.A.C. 90; 2000 MBCA 145, refd to. [para. 11].

Spoor et al. v. Nicholls et al., [2001] B.C.A.C. Uned. 126; 90 B.C.L.R.(3d) 88; 2001 BCCA 426, refd to. [para. 16].

Law Society of Manitoba v. Eadie (1988), 54 Man.R.(2d) 1 (C.A.), refd to. [para. 26].

Counsel:

Janice M. Dewar, for the petitioner;

Phillip F. Cramer, for the respondent.

This motion was heard before Yard, J., of the Manitoba Court of Queen's Bench, Family Division, Winnipeg Centre, who delivered the following decision on March 28, 2006.