Court File and Parties

Citation: Aletkina v. The Hospital For Sick Children, 2014 ONSC 2387 Divisional Court File No.: 402/13 Date: 2014-04-17 Superior Court of Justice – Ontario Divisional Court

Re: Nadejda Aletkina, Appellant And: The Hospital For Sick Children, Respondent

Before: Hackland R.S.J., Matlow and Kiteley JJ.

Counsel: Nadejda Aletkina, appearing in person, Appellant Melanie A. Warner, for the Respondent

Heard: April 14, 2014 at Toronto

Endorsement

[1] The motion judge, who was sitting as a single judge of the Divisional Court, dismissed the appellant’s motion to admit fresh evidence on her pending appeal from the order of the Master. The appellant now seeks a review of the motion judge’s order by a panel of the Divisional Court pursuant to rule 61.16(6) of the Rules of Civil Procedure, and subsection 21(5) of the Courts of Justice Act.

[2] This is a wrongful dismissal action. The appellant (plaintiff) sought leave before the Master to amend her statement of claim to add new defendants and several new causes of action. The Master refused to allow the amendments because she was of the view that the limitation period for the new causes of action had expired. The Master refused to accept the appellant’s submission that due to her significant mental health issues she was incapable for much of the relevant time period so that the limitation period did not run. In support of this submission, the appellant filed a good deal of evidence before the Master, some of it medical documentation.

[3] The appellant appealed the Master’s order to a single judge of the Divisional Court as contemplated by subsections 19(1)(c) and 21(2)(a) of the Courts of Justice Act. The appellant then served a Notice of Motion advising that she would seek leave to introduce fresh evidence on the appeal on the issue of her alleged incapacity as it related to the limitations issue. The Divisional Court judge, apparently due to time constraints, dealt only with the appellant’s motion to introduce fresh evidence and did not hear submissions on the substantive issues in the appeal. The appeal itself has not yet been heard.

[4] The Divisional Court judge denied the appellant’s motion to admit fresh evidence. It is this ruling that is the subject of this review.

[5] In refusing the appellant leave to adduce fresh evidence, the Divisional Court judge applied the Palmer test (R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759). The Palmer test requires that a party seeking to adduce fresh evidence on an appeal must show that:

(i) the evidence could not through due diligence have been adduced at trial;

(ii) the evidence is relevant in that it bears on a decisive or potentially decisive issue;

(iii) the evidence is credible; and

(iv) the evidence, if believed and taken with the other evidence, could be expected to affect the result.

[6] The Divisional Court judge, following a review of the further evidence which the appellant sought to have admitted, concluded:

Having heard full submissions from both parties, and reviewed the extensive materials filed, I conclude that the appellant has not met the Palmer test because in my view, none of it could be expected to have affected the result of the motion. In addition, much of it, in any event, is irrelevant and/or could have been adduced at first instance.

[7] An application for the admission of fresh evidence on appeal is most often decided by the judge or the panel adjudicating the appeal. This practice is followed because the appeal judge or panel will have the best appreciation of what the determinative issue(s) on appeal is and, therefore, whether the proposed fresh evidence is likely to affect the result. In the present case, when the appeal from the Master is heard on its merits, one issue on appeal will be whether the Master misdirected herself when she concluded that the appellant had not satisfied her that the appellant was incapable, so as to prevent the limitation period from running. On appeal, the Court will have to consider whether the Master erred in failing to direct herself to the issue of whether the appellant had raised a triable issue as to whether she was incapable and, if so, whether her lack of capacity and the associated limitations issue should have been left to the trial judge to decide on a full evidentiary record.

[8] In our opinion, the Palmer test can be reliably applied and the Court’s discretion to admit fresh evidence properly exercised, only when the potentially determinative issues are accurately identified, something best done by the judge or panel hearing the appeal on its merits. In this case, the motion judge applied the Palmer test to the issue as stated by the Master, without knowing whether the judge hearing the appeal on its merits will hold that the Master stated the issue correctly.

[9] The appellant, who is self-represented, also argued that she had not appreciated the significance of her lack of capacity to the running of the limitation period until she received the respondent’s factum a few days before hearing of her motion so that she had time to file only the medical information she had on hand. She said she requested an adjournment from the Master and was refused. She suggested that she lacked adequate time to gather the additional medical information she now seeks to have admitted. Unfortunately, this procedural fairness argument is not identified in the appellant’s motion materials; nor is a transcript of the hearing before the Master available to the Court. Respondent’s counsel did take issue with the appellant’s claim that she sought an adjournment from the Master so she could file further medical evidence. However, the Master’s refusal to grant an adjournment was not raised as an issue before the motion judge, this Court is therefore unable to deal with this issue.

[10] In our respectful opinion, in the particular circumstances of this case, it was an overriding and palpable error for the motions judge to reject the fresh evidence rather than leave the Palmer analysis to the Divisional Court judge who will decide the appeal on its merits.

[11] Accordingly, an order will issue setting aside the order of the motion judge. The issue of the admissibility of the proffered fresh evidence is left to be determined by the judge hearing the appeal on its merits.

[12] The costs of this review are referred to the judge hearing the appeal.

HACKLAND R.S.J.

MATLOW J.

KITELEY J.

Date: April 17, 2014