Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BEFORE: cunningham a.c.j., mcrae and archibald jj.
B E T W E E N:
ANTHONY TSAI Appellant
- and -
THEODORE POCHWALOWSKI Respondent
COUNSEL:
Anthony Tsai – In Person
Leo Klug, for the Respondent
HEARD: November 18, 2003
Oral Reasons for Judgment
MCRAE J.: (Orally)
[1]
Motion for Fresh Evidence
This is an appeal from a decision of Wright J. wherein he granted judgment in the amount of $3,000 plus costs against the appellant for defamation. The appellant, by preliminary motion asks for leave to introduce medical records relevant to his psychiatric condition to establish that he should not be liable for the defamation due to this condition.
2It is clear that all of these records would have been available at trial. He failed to produce them at trial and even refused to do so. The four part test for the admission of such evidence is outlined by the Court of Appeal in Visagie v. TVX Gold Inc. (2000), 2000 5749 (ON CA), 187 D.L.R. (4th) 193 as follows:
“The Supreme Court of Canada set out a four-part test for the admission of fresh evidence on appeal in R. v. Palmer:
(i) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial…
(ii) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(iii) the evidence must be credible in the sense that it is reasonably capable of belief, and
(iv) 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.”
3The appellant failed to meet this test, the fresh evidence will not be admitted.
4Notwithstanding the ruling with respect to the fresh evidence, we have read the evidence and considered the medical records. In our view they would be incapable of altering the result in any event.
[5]
Merits of the Appeal
With respect to the merits of the appeal, the trial Judge dealt carefully and completely with the issues. We are unable to find that he was in error. The appeal is dismissed.
CUNNINGHAM A.C.J.
[6]
Costs
The appeal is dismissed for oral reasons. Costs to the respondent fixed at $4,000.
CUNNINGHAM A.C. J.
MCRAE J.
ARCHIBALD J.
Date of Reasons for Judgment: November 18, 2003
Date of Release: November 24, 2003
COURT FILE NO.: 58/03
DATE: 20031118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BEFORE: cunningham a.c.j., mcrae and archibald jj.
B E T W E E N:
ANTHONY TSAI Appellant
- and -
THEODORE POCHWALOWSKI Respondent
ORAL REASONS FOR JUDGMENT
CUNNINGHAM A.C. J.
Date of Reasons for Judgment: November 18, 2003
Date of Release: November 24, 2003