Jafine v. Mortson
[Indexed as: Jafine v. Mortson]
52 O.R. (3d) 141
[2000] O.J. No. 5772
Court File No. 51585/99
Ontario Superior Court of Justice Divisional Court
Matlow, Jennings and Lederman JJ.
September 18, 2000**
[Quicklaw note: In the paper version, the two decisions of the Divisional Court, dated May 2, 2000 and September 18, 2000 were published together at 2000 29036 (ON SCDC), 52 O.R. (3d) 135. The two decisions have been separated in the online version to enable linking to citators. The following headnote was published on the combined case.]
*Note: A motion for leave to appeal to the Court of Appeal (Morden, Rosenberg and Simmons JJ.A.) was dismissed on November 21, 2000.
**Note: This judgment was recently brought to the attention of the editors.
Municipal law -- Councillors -- Conflict of interest -- Pecuniary interest -- Member voting on resolution encouraging province to extend highway -- Member owning property on possible route -- Member having pecuniary interest -- Member contravening Act -- No sanction imposed because member's failure to declare conflict being error in judgment -- Elector appealing and granted leave to file fresh evidence about member owning additional properties -- Appellate court granting appeal and remitting case for trial judge to consider the fresh evidence -- Normal test for use of fresh evidence modified by statute -- Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50, s. 11(2).
By way of a cross-appeal, J, an elector in the Town of East Gwillimbury in the Regional Municipality of York, appealed a judgment granted in proceedings under the Municipal Conflict of Interest Act. In those proceedings, the respondent M, the mayor of East Gwillimbury, was found to have breached the Act for failing to disclose that he had a pecuniary interest. The breach arose because M owned a 100-acre property that was in proximity to a possible extension of Highway 404, which extension was the subject of votes at the June 11, 1998 meeting of the Regional Council and at the July 20, 1998 meeting of the Town Council. The trial judge, however, held that the failure to disclose was an error in judgment and, accordingly, no statutory consequence or sanction was imposed. M appealed but abandoned his appeal, and on cross-appeal, J applied for leave to tender fresh evidence. The fresh evidence indicated that M had interests in other properties in the area of the proposed extension of Highway 404.
Held, the appeal should be allowed and the matter should be remitted to the trial judge.
The test from the Ontario Court of Appeal's decision in Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208, that in order for fresh evidence to be used it must be credible, not obtainable by the exercise of reasonable diligence before the trial and likely to be conclusive of an issue, is modified because of s. 11(2) of the Municipal Conflict of Interest Act. This subsection uniquely provides the appellate court with the power to grant a new trial before the same judge for the purpose of taking additional evidence. This option is intended for circumstances where fresh evidence arises subsequent to a judgment, and that fresh evidence satisfies the first two parts of the Sengmueller test and, in addition, might well have affected the trial judge's initial disposition. The fresh evidence tendered in the immediate case satisfied this modified test and, accordingly, the trial judge should reconsider the initial judgment in light of the fresh evidence.
CROSS-APPEAL of a judgment of MacKinnon J. (1999), 1999 14775 (ON SC), 43 O.R. (3d) 81, 50 M.P.L.R. (2d) 218 (Gen. Div.) under the Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50.
Cases referred to Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208, 111 D.L.R. (4th) 19, 1 L.W.R. 46, 25 C.P.C. (3d) 61, 2 R.F.L. (4th) 232 (C.A.) Statutes referred to Municipal Conflict of Interest Act, R.S.O. 1990, c. M.50, s. 10(2), 11(2)
Gavin J. Tighe, for cross-appellant. Barnet H. Kussner, for cross-respondent.
The judgment of the court was delivered by
1MATLOW J.: -- We fix the costs of the appeal before us at $2,500 and refer them for disposition by the trial judge in his discretion at the time of his final disposition of this proceeding before him.