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.