DATE: 20010703 DOCKET: C35511

COURT OF APPEAL FOR ONTARIO

RE:

THE ATTORNEY GENERAL OF CANADA (Plaintiff) v. U.S.F & G. INSURANCE COMPANY OF CANADA, formerly known as Fidelity Insurance Company of Canada (Defendant/Respondent) v. Mihrali Celik, Eshrat Celik, Mihrali Celik, carrying on business under the name of OXFORD BUILDING MAINTENANCE ENGINEERING (A Proprietorship), London, Ontario, Canada (Third Parties/Appellants)

BEFORE: OSBORNE A.C.J.O., FINLAYSON and SHARPE JJ.A.

COUNSEL: Mihrali Celik appearing in person

William G. Woodward for the respondent

HEARD: June 28, 2001

On appeal from the judgment of Justice Edward R. Browne, dated December 11, 2000.

ENDORSEMENT

[1] The appellant limited his submissions to his application to admit fresh evidence. He had previously sought leave to adduce the same proposed fresh evidence before the panel which dismissed his appeal from the trial judgment of Browne J. The panel which heard the appellant’s appeal and dismissed it, later refused to reconsider its decision in light of the fresh evidence.

[2] Having lost the fresh evidence issue in this court, the appellant sought leave to resurrect the same issue in the Superior Court. His motion to admit the fresh evidence came before Killeen J. who sensibly determined that Browne J., the trial judge, should deal with the issue. On December 11, 2000, after hearing submissions, Browne J. endorsed the record, as follows:

The trial is over. The appeal to the Court of Appeal is over. The Court of Appeal would not hear further submissions on the fresh evidence. Motion to adduce fresh evidence as identified dismissed. Having said that I am not satisfied that there is jurisdiction to bring this motion at this time. Order to go that there be no further proceedings in these issues without leave. Costs to the responding parties fixed at $1,000.00.

[3] We have reviewed the fresh evidence which the appellant seeks leave to file. Quite apart from the fact that the admissibility of this evidence was determined by this court on September 21, 2000, at which time the panel which heard the appeal refused to reconsider the appeal in light of the fresh evidence in question, we are of the view that the proposed fresh evidence does not meet the requirements for the admission of fresh evidence. Among other things, it could not reasonably be expected to have affected the result at trial when considered with the other trial evidence. Another way of putting it is to ask the question – if this evidence had been before the trial judge would it have affected the result? In our view, the answer to that question is no. The proposed fresh evidence is but a small part of a reasonably extensive picture. When considered in isolation and as part of the entire picture, it could not reasonably be expected to have affected the result of this case.

[4] There is no merit in the other issues raised by the appellant in his factum.

[5] The appeal is, therefore, dismissed with costs.

“C.A. Osborne A.C.J.O.”

“G.D. Finlayson J.A.”

“Robert J. Sharpe J.A.”