COURT OF APPEAL FOR ONTARIO

DATE: 2006-07-07 DOCKET: C43425

RE: ROBYN WYNBERG and SIMON WYNBERG on their own behalf and in their capacity as joint litigation guardians of SEBASTIAN and NATHANIEL WYNBERG et al. (Plaintiffs (Respondents in Appeal) (Respondents on Motion)) – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (Defendant (Appellant) Moving Party)

AND BETWEEN: MICHAEL SHANE DESKIN and NOAH SAMUEL DESKIN minors by their litigation guardian Brenda Jill Deskin, BRENDA JILL DESKIN, STEVEN JOEL DESKIN, SHELDON KOSKY, FRANCES KOSKY, and BETTY DESKIN (Plaintiffs (Respondents in Appeal) (Respondents on Motion)) – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (Defendant (Appellant) Moving Party)

BEFORE: GOUDGE, SIMMONS AND GILLESE JJ.A.

COUNSEL: Robert E. Charney, Sarah T. Kraicer, S. Zachary Green and Bruce C. Ellis for the appellant, (moving party) Her Majesty The Queen in Right of Ontario Mary Eberts for the respondents, Wynberg et al. Scott C. Hutchison for the respondents, Deskin et al.

HEARD: December 5, 6, 7, 8 and 9, 2005

ENDORSEMENT

[1] The appellant has now brought a motion to admit fresh evidence. In our view this motion seeks to introduce evidence designed to address an issue which is not central to the argument on appeal, and is not useful to our disposition of the appeal. The motion is therefore dismissed.

[2] Since, in our view, the motion was unnecessary, the respondents shall have their costs of the motion on a partial indemnity basis, to be assessed, in any event of the cause.

"S. T Goudge J.A."

"Janet M. Simmons J.A."

"E. E. Gillese J.A."