COURT FILE NO.: 1392

DATE:

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

LAWRENCE BRUCE RITCHIE

Self Represented

Appellant (Plaintiff)(Moving Party)

• and -

SAWMILL CREEK GOLF & COUNTRY CLUB LIMITED AND WILLAM M. GERRITS

L.E. TRENT HORNE J. CHAN, Solicitors for the Respondents

Respondents (Defendants)(Responding Parties)

HEARD: 20 April 2004 in London

Associate Chief Justice J.D. Cunningham The Honourable Regional Senior Justice J.C.Kent The Honourable Mr. Justice C.D. McKinnon

RULING ON A MOTION

The appellant (Plaintiff and Moving Party), Lawrence Bruce Ritchie, seeks leave to introduce new evidence on this appeal. He contends that the proposed evidence will demonstrate that a finding of fact made by the trial judge was erroneous. He maintains that that erroneous finding was fundamental to the trial judge’s assessment of credibility and therefore places his entire decision in doubt. He states that he does not wish a new trial, but asks that, upon receipt of this new evidence, his appeal be allowed and judgment be given in his favour.

Background:

1The trial judge found that certain photographs taken by the plaintiff were delivered to the defendants, probably in “late June 1999” with permission to “do with them as you like”. He found that the photographs were a “gift” made “unconditionally”. Ritchie had testified that he had imposed a restriction upon the use of the photographs and had cautioned the defendant William M. Gerrits, a principal of the defendant Sawmill Creek Golf and County Club, concerning Ritchie’s copyright in the photographs. Gerrits denied that in rebuttal testimony and was assessed by the trial judge as “unshaken in cross-examination”. The trial judge found Gerrits’ version to be “the more credible”.

2Part of the proposed new evidence would, arguably, if admitted and accepted, establish that the photographs could not have been delivered until after 17 July 1999. It follows, argues Ritchie, that if the trial judge was in error as to the date of delivery he may also be in error in finding that the photographs were delivered with no restriction(s) as to what use the defendants could make of them.

Nature of the Evidence:

3The witness who it is said would give the proposed evidence is not presently available to testify before this Court. His proposed testimony is not available in affidavit form. His testimony cannot, therefore, be the subject of cross-examination. Furthermore, before trial, a Notice to Admit was served upon the appellant and, through counsel, he admitted that the photographs were delivered “in or about July 1999”. That admission, however, was not before the trial judge.

4Other evidence that the appellant seeks leave to present concerns the existence and status of the corporate defendant currently and at trial. That evidence does not go to the credibility issue and is, in any event, irrelevant on this appeal.

The Test:

5An appeal court may exercise its discretion in favour of admitting fresh evidence when:

(a) The proposed evidence appears to be credible;

(b) The proposed evidence could not have been obtained by the exercise of reasonable diligence before trial; and

(c) The proposed evidence will likely be conclusive of an issue in the appeal.

See: Cook v Mounce (1979), 26 O.R. (2d) 129 (Div Crt); Sengmueller v Sengmueller (1994), 17 O.R. (3d) 208 (C.A.)

Application of the Test:

6The credibility of the evidence in its present form cannot be ascertained. The proposed evidence probably could have been obtained before trial by the exercise of reasonable diligence. It may, if admitted, significantly weigh upon a credibility finding which supports the factual finding as to the date of delivery of the photographs. Whether it would also bear on the factual finding as to the use that the defendants could make of the photographs is not conclusive.

7In view of the foregoing the test does not appear to have been met.

Result:

8For all of the above reasons, we declined at the outset of this appeal to receive the proposed fresh evidence.

Cunningham, J

Kent, J

McKinnon, J