ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’driscoll J., mccartney r.s.j. and swinton j.
B E T W E E N:
PAUL SMITH
Appellant
(Plaintiff)
- and -
CANADA CUSTOMS AND REVENUE AGENCY, THE MINISTER OF CANADA CUSTOMS AND REVENUE AGENCY and EDNA SOIFER
Respondents
(Defendants)
Miguna Miguna, for the Appellant
P. Christopher Parke, for the Respondents
HEARD at Toronto: February 15, 2006
swinton J.: (Orally)
1The test for the admission of fresh evidence is set out in Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 O.R. (3d) 208 (C.A.) at 210-11. An appeal court will admit fresh evidence if:
(i) the tendered evidence is credible;
(ii) it could not have been obtained by the exercise of reasonable diligence prior to trial and;
(iii) the evidence, if admitted, will likely be conclusive of an issue in the appeal.
2The factum below will be accepted to show the arguments made below, given the tape erasure, but we see no reason to consider the affidavit accompanying it.
3The correspondence relating to the tapes is not admitted. It is not relevant to the issues on this appeal.
4The expert reports are not admitted as they are not fresh evidence.
5The material in the supplementary appeal book dealing with training manuals, and enforcement manuals and policies is not admissible as fresh evidence, as this material could have been obtained with reasonable diligence prior to the trial. Moreover, the evidence is not relevant to the issues of false arrest or Charter breaches.
6Therefore, aside from the factum below, the evidence is not admissible, and the motion is dismissed.
7As there is no formal notice of motion, the appeal book will be endorsed to reflect the decision on the motion.
O’DRISCOLL J.
MCCARTNEY R.S. J.
SWINTON J.
Date of Reasons for Judgment: February 15, 2006
Date of Release: February 21, 2006
COURT FILE NO.: 634/04
DATE: 20060215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’driscoll J., mccartney r.s.j. and swinton j.
B E T W E E N:
PAUL SMITH
Appellant
(Plaintiff)
- and -
CANADA CUSTOMS AND REVENUE AGENCY, THE MINISTER OF CANADA CUSTOMS AND REVENUE AGENCY and EDNA SOIFER
Respondents
(Defendants)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: February 15, 2006
Date of Release: February 21, 2006