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A motion to admit fresh evidence on appeal was dismissed because the evidence was available and foreseeable at trial.
The appellant, a company convicted of breaching a municipal zoning bylaw by stacking shipping containers to a height exceeding the maximum permitted height of 5 metres, appealed the conviction and sought to introduce fresh evidence on appeal.
The fresh evidence consisted of internet-sourced information regarding standard shipping container sizes.
The court dismissed the motion to admit fresh evidence, finding that the evidence was available and discoverable at trial, the issue of container height was clearly foreseeable, and the appellant's legal counsel had been aware of and addressed this issue during trial.
The appellant's decision not to call evidence at trial was an informed tactical decision by counsel, and the appellant could not now introduce such evidence on appeal.
Appeals under the Building Code Act proceed as de novo hearings on a paper record.
The Corporation of the Town of Caledon brought a motion for directions regarding an appeal by Joseph Michael Bozzelli and Amanda Bozzelli under the Building Code Act, 1992.
The motion sought clarification on the proper procedural rule (Rule 61, 38, or 62 of the Rules of Civil Procedure) and whether the appeal would be a de novo hearing allowing viva voce evidence.
The court determined that Rule 62 was the appropriate procedural rule, supplemented by Rule 38 by analogy, and that the appeal would proceed as a hearing de novo.
However, the court ruled that the hearing would be on a paper record, without viva voce evidence, limiting additional evidence to affidavits concerning compliance time for the underlying property standards order.
