CITATION: Roth v. Insalaco, 2010 ONCA 425
DATE: 20100609
DOCKET: C51544
COURT OF APPEAL FOR ONTARIO
Rosenberg, Armstrong and Juriansz JJ.A.
BETWEEN:
Judy Roth
Plaintiff (Appellant)
and
Salvatore Insalaco, deceased and Maria Insalaco
Defendants (Respondents)
Judy Roth, in person
Alistair Riswick, for the respondent
Heard and endorsed: June 8, 2010
On appeal from the judgment of Justice Douglas Gray of the Superior Court of Justice dated December 16, 2009.
APPEAL BOOK ENDORSEMENT
[1] We agree with the motion judge that on the material before him, the action was statute-barred: McVan General Contracting v. Arthur et al., (2002), 2002 45035 (ON CA), 61 O.R. (3d) 240 (C.A.). The appellant seeks to admit as fresh evidence a cheque dated December 17, 2003 from the mortgagors’son. The appellant has provided no evidence to explain the failure to adduce this evidence before the motion judge, or evidence of the conversations she had with Mr. Insalaco explaining that the cheque was intended as a payment on the two mortgages.
[2] Accordingly, the application to adduce fresh evidence is dismissed and the appeal is dismissed. In the circumstances this is not a case for costs.