COURT OF APPEAL FOR ONTARIO
DATE: 20000602
DOCKET: C33131
RE: HERBERT E. HALLATT and MARION E. HALLATT (Appellants)
–and– GENE BYNG WILLIAMS (Respondent)
BEFORE: OSBORNE A.C.J.O., WEILER and CHARRON JJ.A.
COUNSEL: John F. Evans, Q.C., for the appellants
Tony Powell, for the respondent
HEARD: May 26, 2000
On appeal from the order of Cavarzan J. dated October 20, 1999.
E N D O R S E M E N T
[1] The motions judge found that the appellants had “failed to
satisfy the onus on them to prove perjury.” In reaching that
conclusion, the motions judge considered whether there was direct
evidence of perjury in the taped September 1999 conversation and
whether perjury was established in that conversation by
reasonable inference.
[2] To succeed on this appeal, the appellants must satisfy us
that the motions judge’s conclusion was wrong. Although we
accept that the reference in the taped conversation to “he will
get down on his knees and apologize” was very likely a reference
to the respondent, we are not satisfied that the taped
conversation on which the appellants rely establishes (by
inference, there being no direct evidence) that the respondent
perjured himself in his trial evidence.
[3] The proposed fresh evidence consists of affidavits from the
appellant Herbert Hallatt, John MacLeod, a banker, and Douglas
Burns, Glanford’s corporate solicitor. The appellants’ evidence
is of little assistance and, in any case, does not constitute
fresh evidence. Nor do the affidavits of the bank manager and
the corporate solicitor constitute evidence that is fresh. Their
evidence could have been adduced on the motion.
[4] Even if the fresh evidence is admissible, that evidence,
when considered with the evidence of the taped conversation –
that is the evidence before the motions judge – does not, in our
view, constitute clear and cogent evidence of perjury or fraud in
the sense that it constitutes evidence that the respondent
deliberately misled the court in his trial evidence, particularly
on the issue of the absence of an agreement to purchase the Lear
jet for the business.
[5] Thus, notwithstanding Mr. Evans’ able submissions, the
appeal must be dismissed with costs fixed at $4,000, including
the costs of the motion to quash.
“C.A. Osborne A.C.J.O.”
“K.M. Weiler J.A.”
“Louise Charron J.A.”