RVL Masonry Ltd v. Chijindu, 2016 ONSC 5809
CITATION: RVL Masonry Ltd v. Chijindu, 2016 ONSC 5809
DIVISIONAL COURT FILE NO.: DC-14-00753-00 DATE: September 16, 2016
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Molloy, C. Horkins, Howard JJ.
BETWEEN:
RVL Masonry Ltd. Plaintiff/Respondent on Appeal
– and –
Christian Chijindu and Nkiruka Ochei Defendants/Appellants
AND BETWEEN:
Christian Chijindu and Nkiruka Ochei Plaintiffs/Appellants
-and-
Robert Van Londen Defendant/Respondent
COUNSEL:
Christian Chijindu, acting in person and as Solicitor for Nkiruka Ochei Adriana Carnevale and M. Williams, for the Respondents
HEARD at Oshawa: September 14, 2016
ORAL REASONS FOR JUDGMENT
MOLLOY J. (orally):
[1] The appellants seek to introduce fresh evidence on this appeal. One of the issues on the appeal is the last date upon which work was done by RVL Masonry Ltd. (“RVL”). The appellants argue that RVL tendered evidence that it could not finish the work in February 2013 because of extreme cold, and that it left its equipment and materials in place until its workers returned to the site on May 9, 2013, and finished the work.
[2] The appellants seek to introduce an aerial photograph of the property taken by a company called First Base Solutions on April 15, 2013. They assert that this photograph shows the RVL equipment had been removed at least by that date. This, they say, undermines the credibility of the RVL witnesses as to their doing the work on May 9, 2013, using that equipment.
[3] The test to be applied for the admission of fresh evidence is common ground between the parties, as established by the Supreme Court of Canada in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759. The four-part test for the admission of evidence on appeal is established in Palmer as follows:
(i) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, provided that this general principle will not be applied as strictly in criminal cases as in civil cases;
(ii) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at the trial;
(iii) The evidence must be credible in the sense that it is reasonably capable of belief; and
(iv) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[4] In my view, the Palmer test applies, and I find that none of the four criteria has been satisfied in this case.
[5] The trial proceeded in December 2014. The aerial photograph that the appellants now seek to introduce was available for purchase on the website of First Base Solutions from January 10, 2014, approximately 11 months before trial. This evidence was clearly available to the appellants prior to the trial date. The appellant, Christian Chijindu, is self-represented, but he is a lawyer whose practice includes real estate law. The only explanation advanced in the appellants’ material for not obtaining the aerial photograph earlier is the assertion in the factum that Mr. Chijindu believed the photographs he had already tendered at trial would have been sufficient.
[6] Paragraphs 9 to 10 of the appellants’ factum state that:
The evidence the appellants seek to introduce was not discoverable by reasonable due diligence by the appellants before the end of the trial, as their reasonable due diligence had already yielded probative relevant evidence at trial. All the pictures tendered by the appellants sufficiently provided enough proof (that contrasted with the evidence of the respondents) … The real issue here is not whether the appellants could have procured this fresh evidence at the trial (because they could not in light of their sufficient diligent effort); the issue is the apparent injustice the trial judge’s error in ignoring the considerable real “photographic” evidence provided by the appellants has caused in this case.
[7] There was no affidavit evidence from the appellants on this point. It is clear that the appellants made a strategic decision that they had sufficient evidence to prove their case, and decided not to seek out further photographic evidence. Accordingly, the first branch of the test in Palmer is not met. The evidence could have been adduced at trial if the appellants had exercised due diligence.
[8] I am also of the view that the second and fourth branches of the Palmer test are not met. The evidence is potentially relevant to whether the equipment was on site in April 2013, however, that is not a decisive or potentially decisive issue. The real question is whether substantial work was done on the site on May 9, 2013. In making this determination, the trial judge relied on viva voce evidence from the workmen who attended and records of payments made to them for the work done. The positioning of the equipment between February and May is, at best, tangential to that issue. It is not decisive, nor would it have reasonably affected the results at trial.
[9] In addition, the aerial photograph itself does not meet the third criterion that the evidence is “credible and reasonably capable of belief”. The aerial photograph is grainy and somewhat blurred, but it does show heavy equipment near Mr. Chijindu’s home that looks to me to be consistent with the photographs of RVL’s equipment taken in March 2013, which photograph was before the trial judge.
[10] Mr. Chijindu explained that the equipment in the aerial photograph is different and was there to do excavation work, but that is not apparent to me just looking at the photograph, and there is no evidence to interpret the photograph. Thus, there are problems with all four branches of the Palmer test. Accordingly, the evidence is not admissible.
[11] As I noted at the outset, in my view, the Palmer test is determinative. However, even if there is a broader “interests of justice” test, it would not advance the interest of justice in this case to bring in new, unclear evidence at this stage of the proceeding.
[12] The motion is dismissed.
Molloy J.
C. Horkins J.
Howard J.
Date of Reasons for Judgment: September 14, 2016
Date of Release: September 16, 2016
DIVISIONAL COURT FILE NO.: DC-14-00753-00 DATE: 20160914
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Molloy, C. Horkins, Howard JJ.
BETWEEN:
RVL Masonry Ltd. Plaintiff/Respondent on Appeal
– and –
Christian Chijindu and Nkiruka Ochei Defendants/Appellants
AND BETWEEN:
Christian Chijindu and Nkiruka Ochei Plaintiffs/Appellants
-and-
Robert Van Londen Defendant/Respondent
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: September 14, 2016
Date of Release: September 16, 2016