ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lederman, swinton and himel jj.
B E T W E E N:
ROBERT SALNA
Applicant
(Respondent in Appeal)
- and -
ROFIE LOTFI-NOUSHAD, 1369450 ONTARIO INC. 1124372 ONTARIO LIMITED and 1544431 ONTARIO INC.
Respondents
(Appellants)
Charles M. Gastle, for the Applicant (Respondent in Appeal)
Leonard Ricchetti, for the Respondent 1544431 Ontario Inc. (Appellant)
HEARD at Toronto: April 26, 2007
swinton J.: (Orally)
1The respondent Robert Salna brought a motion to introduce fresh evidence arising from the examination for discovery of the respondent Rofie Lotfi-Noushad.
2The test for adducing fresh evidence on appeal is well known:
(i) the evidence could not have been obtained with reasonable diligence at the time of the initial proceeding;
(ii) it must be credible in the sense that it is reasonably capable of belief;
(iii) it must bear on a decisive or potentially decisive issue; and
(iv) the evidence, if believed could reasonably, when taken with other evidence be expected to affect the decision at first instance (Visagie v. T.V.X. Gold Inc. (2000) CarswellOnt. 1888 (C.A.) at paragraph 53).
3The motion is dismissed. The evidence which the respondent seeks to put forward, namely, Lotfi-Noushad’s real or apparent authority to bind Silverwoods in October, 2004, is not a central issue or determinative of the issue before the motions judge. Nor is it determinative of the issue in this appeal, which is whether the motions judge erred in granting injunctive relief by ordering Silverwoods to post security. Moreover, the evidence could have been obtained with reasonable diligence before the initial proceeding, even though there were time constraints.
4The motion is dismissed.
SWINTON J.
LEDERMAN J.
HIMEL J.
Date of Reasons for Judgment: April 26, 2007
Date of Release: May 3, 2007
COURT FILE NO.: 174/07
DATE: 20070426
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lederman, swinton and himel jj.
B E T W E E N:
ROBERT SALNA
Applicant
(Respondent in Appeal)
- and -
ROFIE LOTFI-NOUSHAD, 1369450 ONTARIO INC. 1124372 ONTARIO LIMITED and 1544431 ONTARIO INC.
Respondents
(Appellants)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: April 26, 2007
Date of Release: May 3, 2007