CITATION: Roopnarine v. Duggleby, 2009 ONCA 379

DATE: 20090506

DOCKET: C47366

COURT OF APPEAL FOR ONTARIO

Feldman, Blair and Epstein JJ.A.

BETWEEN:

Larry Roopnarine

Appellant

and

Mary Ellen Duggleby

Respondent

Kenneth Arenson for the appellant

Chris G. Paliare and Andrew K. Lokan for the respondent

Heard and released orally: April 21, 2009

On appeal from the judgment of Justice Harvey Spiegel of the Superior Court of Justice, sitting with a jury, dated June 6, 2007.

ENDORSEMENT

[1] The appellant’s claim for damages arising out of an automobile accident was dismissed by a jury. The jury found no negligence on the part of the respondent and that the accident did not cause the appellant’s damage.

[2] The appellant seeks to introduce fresh evidence on the appeal to establish that the respondent’s trial counsel misled appellant’s counsel regarding the accuracy of a diagram of the intersection. He claims that the respondent’s trial counsel improperly cross-examined the appellant on the diagram, knowing it was inaccurate and that the appellant’s credibility was unfairly compromised based on the improper cross-examination.

[3] We see no merit in the argument. The fresh evidence is not admitted as it does not meet the Palmer test regarding discoverability. There is no support in the record including the proposed fresh evidence for the allegation that respondent’s trial counsel acted improperly.

[4] Further, there was ample evidence, including that of an independent witness, to support the jury’s findings in favour of the respondent on the issue of liability. There was also expert evidence for the respondent that the appellant had not established causation.

[5] The appeal is therefore dismissed with costs to the respondent on the partial indemnity scale fixed at $36,835.16, plus G.S.T.

Signed: “K. Feldman J.A.” “R. A. Blair J.A.” “G. J. Epstein J.A.”