J.F. McCartney

The appellant brought a motion to admit fresh evidence on an appeal involving claims of false arrest and Charter breaches.

The proposed evidence included correspondence, expert reports, and training manuals.

The Divisional Court applied the Sengmueller test and found that the evidence was either not fresh, not relevant, or could have been obtained with reasonable diligence prior to trial.

The motion was dismissed, although the factum from the court below was accepted to show the arguments made due to a tape erasure.

The applicant sought to set aside or vary an order of a single judge of the Divisional Court, which had quashed its application for judicial review of an arbitration award administered by a voluntary dispute resolution corporation.

The Divisional Court dismissed the motion, agreeing with the single judge that jurisdiction to set aside the arbitration award lies exclusively with the Superior Court of Justice under the International Commercial Arbitration Act.

Furthermore, the court noted the motion was out of time under Rule 61.16(6) with no grounds justifying an extension.

The Attorney General of Canada sought leave to appeal an interlocutory order that dismissed its motion to strike portions of the plaintiffs' Statement of Claim regarding post-confederation annuity payments under a rectified treaty.

The motion judge had refused to strike the pleadings, reasoning that complex constitutional cases involving treaty interpretation should not be decided at the pleadings stage without a complete factual record.

The court denied leave to appeal, finding no reason to doubt the correctness of the motion judge's decision to allow the action to proceed to trial.

The moving party brought a motion for leave to appeal a decision refusing to strike parts of the respondents' Statement of Claim.

The respondents claimed entitlement to increased annuities under a treaty.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's decision and noting that complex constitutional issues should generally not be decided at the pleading stage.

The appellant appealed a motion judge's order that reduced his spousal support obligations to $400 per month, arguing it should have been reduced to zero due to his unemployment and suspended driver's license.

The Divisional Court found the motion judge erred in ordering any support given the economic disparity and the appellant's unemployment.

The court reduced the ongoing support to zero as of November 2003, but declined to order retroactive repayment.

No costs were awarded.