COURT FILE NO.: 91/04

DATE: 20040625

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O'DRISCOLL, JENNINGS AND SWINTON JJ.

B E T W E E N:

DAVID F. HASS

Appellant/Tenant

• and -

JETEX INVESTMENTS INC.

Represented at first instance by its agent, 1041646 Ontario Ltd., of which Browning Property Services is a division

Respondent/Landlord

D. F. Hass, In Person

David S. Strashin, for the Respondent/ Landlord

HEARD: June 25, 2004

O'DRISCOLL J.: (Orally)

1The appellant/tenant, who appears in person, has filed, in a sealed brown envelope, an affidavit, containing proposed evidence. A copy has been furnished to each member of the Court. We have not opened the envelopes; we have not looked at the contents. We have heard submissions from Mr. Hass this morning as to why we should permit this "fresh evidence".

2Counsel for the landlord submits that this is not really fresh evidence, it is evidence that the tenant tried to adduce before the Tribunal without success.

3Based on the following decisions, in our view, it does not meet the test for fresh evidence.

4The normal basis on which an appeal court in this jurisdiction will exercise its discretion in favour of admitting fresh evidence is clear and well established:

(i) It will do so when the tendered evidence is credible, and

(ii) The evidence proposed could not have been obtained by the exercise of reasonable diligence prior to the trial;

(iii) The evidence, if admitted, will likely be conclusive of an issue in the appeal.

See: Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 209, 210-211 per McKinlay J.A. See also: Cook v. Mounce (1979), 26 O.R. (2d) 129 and the judgment of Doherty J.A., in Hallum v. Canadian Memorial Chiropractic College (1989), 70 O.R. (2d) 119, 121.

5For these reasons, the motion to admit fresh evidence is dismissed.

O'DRISCOLL J.

JENNINGS J.

SWINTON J.

Date of Reasons for Judgment: June 25, 2004

Date of Release: July 13. 2004

COURT FILE NO.: 91/04

DATE: 20040625

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT