APA Holdings Inc. v. Duscio et al., 2017 ONSC 957
CITATION: APA Holdings Inc. v. Duscio et al., 2017 ONSC 957
DIVISIONAL COURT FILE NO.: DC 16-749 DATE: 2017-02-08
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART and SPIES JJ.
BETWEEN:
APA HOLDINGS INC., operating as FILMAR CUSTOM HOMES
Plaintiff (Appellant)
– and –
ANTONIO DUSCIO, also known as TONY DUSCIO and LEANNE DUSCIO
Defendants (Respondents)
Michael A.van Bodegom and Jeramie J.A. Gallichan, for the Plaintiff (Appellant)
Ryan Wozniak, for the Defendants (Respondent)
HEARD at Hamilton: February 8, 2017
Ruling
SACHS J. (Orally)
[1] The Appellant has brought a motion to admit fresh evidence. The motion is resisted on the basis that the Appellant cannot meet the first part of the test for the admission of fresh evidence set out in R. v. Palmer, [1979] S.C.J. No. 126 (S.C.C.). We agree that the fresh evidence was available and could have been put before the motion judge.
[2] For the following reasons we find that in the unique circumstances of this case the evidence should be admitted:
- There was some uncertainty in the state of the law that applied on the motion. This was a factor relied upon by the Court of Appeal when it admitted fresh evidence on appeal in Sengmueller v. Sengmueller, [1984] OJ No. 276 (see para. 35).
In R. v. J.A.A. 2011 SCC 17, 2011 S.C.C. 17, the Supreme Court of Canada admitted fresh evidence from the Appellant in the face of a concession by the Appellant that he could not meet the due diligence criteria. In doing so, the court found at paragraph 8 that, “The due diligence criterion should not trump the other Palmer criteria, particularly in circumstances such as here where trial counsel’s strategy was not unreasonable given the nature of the anticipated Crown evidence.”
In this regard, it is important to know that on the hearing before the motion judge the Respondent Defendant filed no evidence that would have alerted the Appellant’s counsel to the need to explain delay.
The fresh evidence consists largely of a detailed procedural history of these court proceedings and another court proceeding, a procedural history that could be obtained from the court file (which the Respondent concedes can be considered by us) and a history that was well known to the Respondent.
In Golder Associates Ltd. v. North Coast Wind Energy Corp., 2010 BCCA 263, 2010 B.C.C.A. 263 at paragraph 37, the British Columbia Court of Appeal states:
“In my view, the Palmer criteria reflect the caution with which the admission of fresh evidence must be considered, but they are not absolute. The source of the criminal law admissibility of such evidence is the present s. 683(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46, which provides for the admission of evidence “in the interests of justice”. That, I think, must be the overarching consideration in civil as well as criminal appeals.”
In this case, the interests of justice weigh in favour of admitting the evidence. While we recognize the importance of finality in litigation, this is not a case where admitting the evidence could affect the result of a trial where time has been spent listening to oral evidence as well as legal arguments. There is no question that the evidence will assist this court in making the decision that it has to make – a decision that could have the serious effect of ending the Appellant’s claim and denying it the right to defend the Respondent’s counterclaim.
[3] For these reasons the motion is allowed.
Sachs J.
I agree
Stewart J.
I agree
Spies J.
Date of Ruling: February 8, 2017
Date of Release: February 10, 2017
CITATION: APA Holdings v. Duscio et al., 2017 ONSC 957
DIVISIONAL COURT FILE NO.: DC 16-749 DATE: 2017-02-08
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, STEWART and SPIES JJ.
BETWEEN:
APA HOLDINGS INC., operating as FILMAR CUSTOM HOMES
Plaintiff (Appellant)
– and –
ANTONIO DUSCIO, also known as TONY DUSCIO and LEANNE DUSCIO
Defendants (Respondents)
RULING
Sachs J.
Date of Ruling: February 8, 2017
Date of Release: February 10, 2017