Oakwell Engineering Ltd. v. Enernorth Industries Inc.

82 O.R. (3d) 500

Court of Appeal for Ontario,

Laskin, MacFarland and LaForme JJ.A.

September 18, 2006

Civil procedure -- Appeal -- Fresh evidence on appeal -- Appellant appealing judgment allowing application to enforce judgment of High Court of Singapore in Ontario -- Application judge having rejected [page501] appellant's defence that Singapore legal system did not conform to Canadian concepts of justice -- Appellant seeking to adduce fresh evidence on appeal which was not available at time of enforcement application in form of affidavit of Singapore litigant who faced criminal contempt proceedings after arguing that Singapore judicial system lacked independence and fairness -- Motion to admit fresh evidence dismissed -- If appellant's argument that Singapore authorities treat raising issue of bias and corruption as criminal act then appellant could have obtained evidence at time of enforcement application from some other individual who had faced that problem -- If affiant of affidavit was only person from whom such evidence could be obtained, problem could not be endemic -- Evidence relating to only one factor considered by application judge.

The respondent obtained a judgment against the appellant in commercial litigation in Singapore. The respondent brought an application to enforce the judgment of the High Court of Singapore in Ontario. The appellant resisted recognition and enforcement on the basis that the Singapore legal system does not conform to the Canadian concept of justice. The application judge found that no defences to enforcement were made out and granted the application. The appellant appealed. The appellant brought a motion for leave to introduce fresh evidence in the form of affidavits from a litigant in the Singapore courts who had criminal contempt proceedings brought against him after arguing that the Singapore judicial system lacked independence and fairness. The appellant claimed that the fresh evidence was necessary in order for it to address the application judge's conclusion that it should have raised its allegations about Singapore's judicial system during the Singapore proceedings.

Held, the motion should be dismissed.

While this particular evidence was not available at the time the enforcement application was argued, if the appellant's claim that Singapore authorities would treat arguments concerning bias and corruption within the legal system as a criminal act, then it could have obtained evidence from any other individual charged with criminal contempt in Singapore for that reason. If it had attempted to obtain such evidence and was unable to do so, then the affiant's experience was unique and could not establish the pattern or conduct alleged by the appellant. Furthermore, the evidence, had it been available at the time of the application, would not have affected the outcome. The proceeding of which the affiant spoke was highly political in nature, unlike this commercial case, and the evidence concerned but one factor considered by the application judge.

Cases referred to

R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22 (sub nom. Palmer and Palmer v. R.), apld

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(4)

MOTION for leave from the judgment of Day J. (2005), 2005 27149 (ON SC), 76 O.R. (3d) 528, [2005] O.J. No. 2652 (S.C.J.) to introduce fresh evidence on appeal. [page502]

David R. Wingfield, M. Kate Stephenson and Paul D. Guy, for appellant.

Edward Babin and Matthew I. Milne-Smith, for respondent.

ADDENDUM

[1] BY THE COURT: -- The court heard the above mentioned appeal on April 10, 2006 and the reserved reasons of the court were released on June 9, 2006.

[2] At the outset of the appeal, the appellant, Enernorth, brought a motion for leave to introduce fresh evidence. In its reasons for judgment released on June 9, 2006, the court did not address this motion and counsel for the appellant has requested a ruling on the motion.

[3] The fresh evidence sought to be introduced consists of two brief affidavits of Chee Soon Juan, the first sworn March 13, 2006 and the second, March 31, 2006. Dr. Chee is the Secretary-General of the Singapore Democratic Party, a political party opposed to the ruling People's Action Party. The cogent parts of his affidavit state:

-- He was a lecturer at the National University of Singapore from 1990 to 1992. In 1993, three months after he joined the Singapore Democratic Party and contested a by-election against the then Prime Minister, he was falsely accused of "misusing" research funds and dismissed from his position at the university.

-- During the 2001 general election he made a speech accusing the then Prime Minister and his Senior Minister of having misled Parliament about a substantial loan Singapore made to the regime of former Indonesian Prime Minister Suharto in 1997.

-- That former Prime Minister and his Senior Minister then sued the affiant for defamation. The affiant could not find a Singapore lawyer to represent him to defend the action. He was refused permission to be represented by a foreign lawyer.

-- In 2003, summary judgment was granted against him in a sum equivalent to about US$300,000.

-- In 2006, the former Prime Minister and his Senior Minister commenced proceedings to have the affiant adjudged bankrupt (presumably because of his failure to pay the judgment they had obtained against him in 2003, although the [page503] affidavit does not say so). Again the affiant could not find a Singapore lawyer to represent him.

-- If adjudged bankrupt the affiant would lose the right to sit in Parliament and could not contest a general election expected in Spring 2006.

-- On February 10, 2006, the affiant was adjudged bankrupt.

-- At the bankruptcy hearing the affiant objected to the proceedings on the basis that the Singapore judicial system lacked independence and fairness. In the course of that proceeding he had tried to file the appellants' factum filed in this court.

-- On February 15, 2006, the Attorney General of Singapore commenced proceedings against the affiant for criminal contempt for his statement made in the February 10, 2006 proceeding.

-- On March 16, 2006, he was convicted of the charges and sentenced to one day in jail plus a fine of $6,000 or seven days in jail in default of payment of the fine.

-- Because of his bankruptcy he served the seven days.

[4] The test for admitting fresh evidence on appeal under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 is a high one:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial,

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial,

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[5] See R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, at p. 775 S.C.R., reference omitted.

[6] Enernorth claims the fresh evidence is necessary in order for it to address Day J.'s conclusion that Enernorth should have raised its allegations about Singapore's judicial system during [page504] the Singapore proceedings. It is Enernorth's position that Day J. erred in declining to accept its explanation that it could not raise these grounds in the Singapore litigation because to do so would have subjected Enernorth to criminal prosecution.

[7] Clearly this particular evidence was not available at the time the application was argued before Day J. It concerns events which largely took place after he made his ruling.

[8] I am of the view that the respondent's argument as set out in paras. 10 and 11 of its factum on the fresh evidence motion is dispositive of this motion. In its factum the respondent states:

10. Enernorth claims that "Singapore authorities and courts would treat as a criminal act" arguments concerning bias and corruption within Singapore's legal system. If this were true, Enernorth could have easily obtained evidence from any other individual charged or previously charged with criminal contempt in Singapore for this reason. There is no evidence that Enernorth made any attempts to do so.

Enernorth's Notice of Motion dated March 28, 2006, paras. 3-5.

11. In the alternative, if Enernorth attempted, but was unable to obtain such evidence, then Dr. Chee's experience is unique. One episode cannot establish the pattern of conduct alleged by Enernorth, and Dr. Chee's evidence is therefore not probative, let alone necessary.

Hassle v. Apotex Inc. (2003), 2003 FCA 87, 23 C.P.R. (4th) 457 at 461-62 (F.C.A.)

[9] Further I am not persuaded that this evidence, had it been available at the time the application was heard, would likely have affected the outcome. In this regard it is of note that the proceeding of which Dr. Chee speaks was highly political in nature. He was not involved in a commercial dispute as were the parties before this court.

[10] As noted earlier, while this precise evidence was not available at the time the application was argued, if the applicant's position has any merit there must have been others besides Dr. Chee who suffered a similar fate for raising such issues.

[11] This evidence concerns but one factor considered by the application judge. There were other substantial factors that weighed in his decision.

[12] In my view, the applicant fails to meet the test for the admission of fresh evidence and I would dismiss the motion.

Motion dismissed. [page505]