Court of Appeal for Ontario

Citation: Centre City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373

Date: 2013-06-05

Docket: C54068

Before: Winkler C.J.O., Rouleau and Hoy JJ.A.

Between

Centre City Auto Sales Inc. and Gus Kalsatos Plaintiffs (Appellants)

and

Alex Kalsatos, Center City Quality Cars Inc., Axela Finance Inc. and Evelyn Watling Defendants (Respondents)

Counsel: Adam J. Ezer, for the appellants Gregory W. Roberts, for the respondents Axela Finance Inc. and Evelyn Watling Alex Kalsatos, acting in person No one appearing for the respondent Center City Quality Cars Inc., now dissolved

Heard and released orally: May 27, 2013

On appeal from the judgment of Justice Sidney N. Lederman of the Superior Court of Justice dated June 27, 2011, with reasons reported at 2011 ONSC 3768.

ENDORSEMENT

[1] In this appeal, the appellants do not allege that the trial judge made any reviewable errors. The appellants have tendered voluminous amounts of proposed fresh evidence and they have conceded that if we do not admit it, there is no basis to allow the appeal.

[2] The fresh evidence consists of documents, records and information that would in the usual course have been obtained through discovery of the respondents before trial. Because the respondents did not attend for their discoveries despite being served with notices of examination, discovery of the respondents was never carried out by the appellants. The fresh evidence could therefore have been obtained by the appellants’ exercise of reasonable due diligence and adduced at trial: all that was required was an order compelling the respondents’ attendance.

[3] The test for admitting fresh evidence on appeal was set out in Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at pp. 210-11, as follows:

Section 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, gives a court to which an appeal is taken discretion “in a proper case” to “receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as the court directs”. What concerns the court is not whether it can admit new evidence, but whether the appeal before it is “a proper case” in which to do so.

The normal basis on which an appeal court in this jurisdiction will exercise its discretion in favour of admitting fresh evidence is clear and well-established. It will do so when (1) the tendered evidence is credible, (2) it could not have been obtained, by the exercise of reasonable diligence, prior to trial, and (3) the evidence, if admitted, will likely be conclusive of an issue in the appeal. [Citation omitted.]

[4] The appellants argue that even though the proposed fresh evidence does not meet the due diligence requirement, this court should nonetheless admit it in the interests of justice. In effect, the appellants argue that because of the concessions the trial lawyer made at first instance and his failure to carry out proper discoveries, they have been left with a hollow judgment for an amount well below what they ought to have been awarded.

[5] We understand that the appellants have instituted an action against their former solicitors for the alleged negligence.

[6] In our view, the fresh evidence ought not to be admitted. The parties underwent a five-day trial and obtained a judgment on the merits. In the circumstances of this case, we see no basis for exercising our discretion in favour of admitting the fresh evidence.

[7] As a result, the appeal is dismissed. Costs to the respondents Axela Finance Inc. and Evelyn Watling are fixed in the amount of $10,000, all inclusive.

“W. Winkler C.J.O.”

“Paul Rouleau J.A.”

“Alexandra Hoy J.A.”