Note: Original reasons for judgment were released January 15, 2003.

Counsel:

 1      POWER J.:— On December 2, 2002, I received a letter dated November 29, 2002 from counsel for the defendants.  This letter reads as follows:

 2      Counsel for the plaintiffs immediately notified counsel for the defendants that they "absolutely" objected to any attempt to adduce further evidence.  They had been advised that the "potential evidence" referred to in the letter to me was the Society of Obstetricians and Gynecologists of Canada (SOGC), Clinical Practice Guideline, dated November 2002, entitled "Screening For Gestational Diabetes Mellitus" ("Guideline").

 3      As a result of these developments, I convened a conference call between myself and counsel for all parties. This telephone conference was held on December 5, 2002. During this telephone conference I advised counsel that, in fact, I had virtually completed my Reasons for Decision. Although the Reasons for Decision had not yet been released, I had made all necessary findings of fact, made findings with respect to liability, and had assessed damages.  I did not advise counsel of the result of these findings.  I simply advised them that a decision had been made.  Indeed, my Reasons for Decision had been completed a few weeks prior to the receipt of the aforesaid correspondence, save for some minor editing.  I was not able to complete the minor editing and release the Reasons for Decision because of other matters to which I was required to attend.  The Reasons for Decision, which precede these Supplementary Reasons, have not been altered in any manner whatsoever from the state they were in prior to the receipt of the aforesaid correspondence.  Only my minor handwritten editing has been incorporated into the final version of the Reasons for Decision.  In other words, I have made no further changes to my Reasons for Decision following the receipt and disposition of the defendants' motion for leave to adduce further evidence.  Had it not been for the receipt of the correspondence from the defendants, these Reasons for Decision would have been released some time during the week of December 2nd, 2002.

 4     Counsel were instructed to make written submissions to me with respect to the defendants' request to admit further evidence, following which I would then determine whether the new evidence should be received by the court.  It was agreed by counsel that it would be appropriate for counsel for the defendants to provide me with a copy of the new SOGC Clinical Practice Guideline.

 5      As aforesaid, the proposed evidence is a guideline dated November 2002 entitled "Screening for Gestational Diabetes Mellitus".  The principal authors of the document are Dr. Howard Berger, Dr. Joan Crane, and Dr. Dan Farine.  Dr. Farine was one of the plaintiffs' principal expert witnesses with respect to, among other things, the topic of Gestational Diabetes Mellitus (GDM).  Indeed, during his evidence, he testified that he was involved in authoring the new Guideline.

 6      Counsel for the defendants, in their written submissions, explained the purpose and nature of the guideline as follows:

             (...)

             [Emphasis added]

 7      It is important to note that the guideline is a document outlining recommended options.  The following note appears at the bottom of page 1 of the guideline:

 8      During the December 5, 2002 telephone conference, I indicated that, in my opinion, the request for the admission of new evidence involved a two-stage process.  Firstly, the court would be required to determine whether the new evidence should be received by the court.  Secondly, if a decision were made to allow the admission of the evidence, the court would have to determine how to deal with it.  This would involve determinations on the manner in which the Guideline would be proved, any examination or cross-examination on its contents; further examination or cross-examination of any of the witnesses already called to testify; the calling of new witnesses, and so on.  Counsel for the plaintiffs suggested that there might also have to be a voir dire to determine the admissibility of the new evidence.

 9      For the reasons that follow hereafter, I refuse the defendants' request to adduce further evidence.

 10      Both parties agree, and it is beyond question, that, notwithstanding my having reached a decision, which I was about to release, I was not, as of December 2, 2002, functus officio.  The defendants state that the test to admit fresh evidence differs for situations where the Reasons for Judgment have or have not been delivered.  They submit that where the "new evidence" could not have been obtained by reasonable diligence before or during the trial and where Reasons for Decision have been delivered, but no formal judgment entered, then, notwithstanding the use of the terms "untrammelled", I, as the trial judge, must consider whether the proposed evidence is such that if it had been presented at trial, it would probably have changed the result.  However, they submit that the test is different where the motion to re-open is brought prior to the delivery of Reasons for Decision.  They submit that in the latter circumstances, the trial judge need not determine on the motion whether the new evidence would probably be instrumental in changing the result.  Therefore, the defendants argue that the test is a less stringent one and thus, I possess an untrammelled discretion to admit new evidence.  The defendants contend that I need only determine whether the new evidence may change the result.  They argue that once a determination has been made that the new evidence may change the court's findings, such evidence must be admitted.  The defendants rely on the following authorities in support of these submissions:

 11      The defendants, however, do concede that while I, allegedly, have an unfettered discretion to hear newly discovered evidence, such a discretion is one that should be exercised sparingly.  I pause to note that there is no suggestion in this case that the court was deliberately misled by the evidence tendered at trial.

 12      The plaintiffs, in response to the foregoing, rely heavily on Lane J.'s reasoning in Castlerigg, supra where he noted that a trial judge should proceed with caution even though he/she has an untrammelled discretion on whether to admit new evidence, the fundamental consideration being that a miscarriage of justice does not occur.  The Plaintiffs argue that, regardless of the stage of completion of the Reasons for Judgment, the defendants must show that the evidence they seek to adduce is such that, if it had been presented at trial, it would probably have changed the result.  The Plaintiffs also argue that the defendants must demonstrate that such evidence could not have been obtained by reasonable diligence before the trial.  They also rely heavily on a Decision of Cumming J. in 671122 Ontario Limited v. Sagaz Industries Canada Inc. (1998), 80 O.T.C. 212 (Ont. S.C.J.), [1998] O.J. No. 4018 (QL), rev'g (2000), 46 O.R. (3d) 760, 183 D.L.R. (4th) 488 (Ont. C.A.), rev'g (2001), 204 D.L.R. (4th) 542, [2001] 2 S.C.R. 983 (S.C.C.) [Sagaz].  Cumming J. refused a request to allow a party to adduce further or new evidence.  The Court of Appeal overruled this decision, but it was reinstated by the Supreme Court of Canada.  At paragraph 22 of the trial court's decision, Cumming J. said:

 13      I pause to note that Cumming J. had released his Reasons for Decision on May 28, 1999 following an eleven day trial held over the period from November 17, 1997 to January 5, 1998.  The motion to admit fresh evidence was received following the release of the Reasons for Decision.  The formal judgment, however, had not been entered.  Cumming J. adopted Gravely J.'s summary of the relevant authorities in Qit Fer et Titane v. Upper Lakes Shipping Ltd. (1991), 3 O.R. (3d) 165 (Ont. Gen. Div.) as follows:

 14      At paragraph 29 of the Sagaz decision, supra, Cumming J. said:

 15      The Supreme Court of Canada, in its decision, had the following to say at page 993:

 16      After a detailed review of the case, the Supreme Court of Canada, at page 1010, said:

 17      In paragraphs 5 and 6 of their reply submissions, the Defendants state the following:

 18      The Defendants argue that the less stringent test is the most appropriate test.  As aforesaid, they argue that if the new evidence "may" change the court's findings, the court should allow such evidence.  In this situation, however, even accepting the Defendants' submissions, the new evidence may not have changed the result simply because my findings of negligence are extensive and go beyond the conclusions reached in the Guideline, as to the question of screening and testing for GDM.

 19      As I indicated in my Reasons for Decision, my task was to determine and apply to the conduct of the defendants the standard of care applicable to them in 1983. In arriving at the conclusions which I reached, I carefully considered substantial evidence called by both parties regarding the state of professional knowledge and the standard of care after that date.  In reaching my decision, I found some of the evidence of developments post 1983 to be helpful in understanding some of the medical terminology and debates and, as well, I found it somewhat helpful in the determination of what was, indeed, the relevant practice and standard of care in 1983.  However, much of the evidence I heard was not helpful in determining what was the applicable standard of care.

 20      At a very early stage in the trial, counsel for the defendants sought to cross-examine the plaintiffs' first liability expert, Dr. Farine, with regard to post 1983 literature.  The plaintiffs objected on the basis that it was the common position of all parties that the relevant time period for the determination of the standard of care was 1983. I allowed the cross-examination to take place.  However, I reserved on the weight to be given to it.  This ruling then led to both parties tendering a substantial amount of evidence with respect to post 1983 developments and literature.  In reaching my decision I, as aforesaid, made limited use of the post 1983 evidence.  My focus had to be, and was, on the appropriate 1983 standard of care.

 21      Accordingly, I am satisfied that the defendants have not met the burden on them to demonstrate that the proposed new evidence which they seek to adduce would either have probably changed the result reached by me, or even applying a lower threshold, I am not satisfied that the evidence might/may change the result.  Therefore, I am convinced that the new SOGC Guideline would not and could not have changed my findings.

 22      The plaintiffs in their submissions on this motion correctly, in my opinion, note that, in any event, the new guideline adds very little to the evidence tendered at trial.

 23      I note, as well, that of the eighty references, which are listed to in the 2002 SOGC guideline, only two items were not available as of the time of trial.  In their written submissions on this motion the plaintiffs state that neither of these two references are germane to the issues in this case and that all of the relevant articles referred to were, in fact, discussed and entered as Exhibits at trial.  The defendants did not challenge this latter statement in their reply submissions on this motion.

 24      The plaintiffs strenuously argue that not only is the new Guideline irrelevant, it does not constitute new evidence and, accordingly, the second branch of the test has not been met.  Technically, given the date of the guideline, the guideline does constitute new evidence.  However, as aforesaid, it does not constitute new evidence of a nature that probably would, may or might have affected my decision.

 25      There is merit in the plaintiffs' position that the issue of universal screening is irrelevant given Mrs. Crawford's presenting condition.  There is also support for their argument that, as of 1983, there was no controversy concerning risk based testing for GDM.  The new guideline does not change this.

 26      As I understand it, the defendants wish to tender the new Guideline not just to bolster other evidence led by them at trial but, as well, to contradict some of the opinion evidence lead through the plaintiffs' expert witnesses and, thereby have an impact on the weight to be given to much of the other evidence given at trial.  Indeed, in their reply submissions on this motion, the defendants argue that the new SOGC guideline "does indeed go to the credibility of Dr. Farine's testimony and that of other plaintiffs' witnesses." The submissions on the issue of credibility lack the type of clarity I would have expected if, indeed, there were credibility issues that may or would probably affect my decision.  To reopen an extremely lengthy trial at this stage based on a vague suggestion that the new evidence goes to credibility would, in my opinion, amount to an abuse of process and create a substantial miscarriage of justice.

 27      In short, Dr. Penney and Dr. Healey failed to provide adequate health care to Mrs. Crawford.   Had they diagnosed GDM and more importantly, managed the GDM properly, this whole problem could have been avoided.  The new evidence does not change my analysis of the experts' testimony.

 28      In conclusion, therefore, I am satisfied that a miscarriage of justice would result in the event I was to permit the defendants to tender the new evidence which it seeks to tender.  Therefore, my Reasons for Decision concluded prior to the request to adduce new evidence, constitute my Reasons for Decision in this action.

 29      The costs associated with this motion shall be included in paragraph 321 of the Reasons for Decision.

POWER J.