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
1The 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.
2The 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.
3We 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.
4Further, 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.
5The 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.”