Court File and Parties

COURT FILE NO.: 636/04

DATE: 20051130

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: MING KOW LAI V. OLIVER WILLIAMS, CHRIS ANAMOULIDIS AND RNE HOLDINGS (ALSO KNOWN AS PARK N FLY)

BEFORE: Justice Then

COUNSEL: William G. Scott, for the Plaintiff

A. Mancuso, for the Defendants

A D D E N D U M

THEN J.:

[1] After the release of my endorsement of November 15, 2005, I received correspondence from counsel for the Defendant seeking clarification of paragraph [4] wherein it is stated that the affidavit of the Plaintiff’s solicitor was tendered before me with the Defendant’s consent.

[2] It is the position of counsel for the Defendant that he opposed the tendering of the affidavit of the Plaintiff’s solicitor as “fresh” evidence on the appeal before me, notwithstanding that the appeal before me is a hearing de novo, as the evidence of the solicitor’s inadvertence and negligence was available to be tendered before the Master but deliberately not tendered by the Plaintiff’s solicitor. Counsel for the Defendant stated he expected a ruling as to the admissibility of the fresh evidence to be forthcoming in the endorsement.

[3] The Plaintiff’s counsel, on the appeal who was not counsel before the Master, replied to the correspondence of Defendant’s counsel. His recollection is that the Plaintiff’s counsel consented to the admissibility of the affidavit of Plaintiff’s solicitor, adverted to its contents in argument and made submissions as to what weight to attach to its contents.

[4] Upon reflection, my own recollection is that Defendant’s counsel consented to the admission of the affidavit of plaintiff’s solicitor on the appeal in the manner outlined by Plaintiff’s counsel on the appeal. However, even if I have misunderstood the position of Defendant’s counsel, I would nevertheless admit the affidavit of the Plaintiff’s solicitor as I am satisfied that it is admissible within the appropriate test to adduce fresh evidence set out in Reid v. Dow Corning Corp., [2002] O.J. No. 3414 at paragraph 28.

[5] In paragraph 18(2) of his affidavit the Plaintiff’s solicitor states:

2. I did not believe it necessary to explain what happened in my office between April 16, 2004 and October 27, 2004 as I did not believe that time period to be inordinate delay.

[6] It is entirely obvious from the affidavit of the Plaintiff’s solicitor that not only could the “fresh” evidence have been provided with due diligence before Master Haberman but that the Plaintiff’s solicitor deliberately did not provide the “fresh” evidence outlining his negligent and inadvertent conduct by way of explanation for the delay because he mistakenly believed that the delay was not inordinate and therefore required no explanation.

[7] The conduct of the Plaintiff’s solicitor has been consistently marked by negligence, inadvertence and mistake including his deliberate decision not to explain the reason for the delay to the Master. There does not seem any acceptable reason not to explain the delay and thereby risk a finding by the Master that the delay was inordinate except for the Plaintiff’s solicitor’s desire to escape embarrassment for the manner in which the Plaintiff’s file was handled. In the circumstances of this case, I am of the view that when the failure of the Plaintiff to meet the due diligence requirement for the admission of fresh evidence is so evidently due to the neglect and inattention of his solicitor, it is nevertheless appropriate to admit the fresh evidence on the basis of the principle articulated by the Court of Appeal in Halton Community Credit Union Ltd. v. ICL Computers Ltd., supra, especially in circumstances where the interest of the innocent Defendant as to a fair trial and costs can be protected.

Then J.

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