COURT OF APPEAL FOR ONTARIO

CITATION: Malka v. Vasiliadis, 2013 ONCA 450

DATE: 20130627

DOCKET: C54531

Feldman, MacFarland and Pepall JJ.A.

BETWEEN

Elie Malka and Circle Inc.

Plaintiffs (Appellants)

and

Larry Vasiliadis and Joe Lugassy

Defendants (Respondents)

Counsel:

Andrew Stein, for the appellants

Stephen Schwartz and Gillian Silverhart, for the respondent, Larry Vasiliadis

David R. Rothwell, for the respondent, Joe Lugassy

Heard and released orally: March 28, 2013

ENDORSEMENT

[1] As part of the within appeal the appellants brought a fresh evidence motion. Although the court did not specifically address the motion in its oral reasons dismissing the appeal, that motion was rejected by the court for the following reasons.

[2] The appellants sought to introduce three affidavits:

1. Affidavit of Elie Malka sworn March 15, 2013
2. Affidavit of Rabbi Elie Karfunkel sworn March 11, 2013
3. Affidavit of Rabbi Eva Goldfinger sworn March 14, 2013.

[3] The fresh evidence sought to be introduced from the Rabbis establishes that on Friday, February 19, 1999, the Sabbath began at 5:53 p.m. and the candle lighting time eighteen minutes earlier at 5:35 p.m.

[4] The significance of this evidence is to cast doubt on the evidence of the respondent Lugassy. Lugassy had testified to the effect that, contrary to evidence he’d given on discovery, he was certain he’d made his arrangements with Vasiliadis to rent the subject premises on Monday, February 22, 1999, rather than on Friday, February 19, 1999. Lugassy testified at trial that he is an observant Jew and Fridays were very short days for him as he did not work after sundown. In his evidence, he estimated that the Sabbath on February 19, 1999 would have begun at 4, 4:30 or 5 o’clock. He testified that he had not checked the internet before giving his estimate of the time of the Sabbath but knew that in February it would be earlier than later in the year. The thrust of his evidence was to the effect that there would not have been time for him to meet with Vasiliadis at 12:30 p.m. and thereafter with his own lawyer to finalize the leasing arrangements before the commencement of the Sabbath at around 4:30 p.m.

[5] The fresh evidence is tendered to demonstrate that the Sabbath did not commence, in fact, on February 19 until 5:53 p.m. (with candle lighting at 5:35 p.m.). Such evidence is submitted to undermine the veracity of Lugassy’s evidence.

[6] Mr. Lugassy’s evidence when examined for discovery, had been that he made his arrangements with Vasiliadis on Friday the 19th of February but he changed that evidence at trial to say the arrangements had been made on Monday the 22nd of February.

[7] No notice of this change in Lugassy’s evidence had been given to appellants’ counsel until the trial was underway. Lugassy said he’d only become aware of his error in relation to the dates when he was preparing for trial.

[8] The test for the admission of fresh evidence on appeal is well-settled:

1. the evidence should not be admitted if by due diligence it could have been adduced at trial;
2. the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
3. the evidence must be credible, in the sense that it is reasonably capable of belief; and
4. it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

See R. v. Palmer, [1980] 1 S.C.R. 759 at para. 22.

[9] The appellants argue that this fresh evidence undermines and makes Lugassy’s evidence untenable. They submit that the case turned on credibility and the trial judge accepted Lugassy’s evidence in this respect – that the events in issue could not have taken place on February 19th because of the timing of the Sabbath. The fresh evidence proves that the actual time of the commencement of the Sabbath on that date was at most, about an hour and one half later than the time estimated by Lugassy and at the least, about forty-five minutes later.

[10] Even assuming the evidence were admissible under the Palmer test, when taken with the other evidence, it would not be reasonably expected to have affected the result.

[11] Lugassy did not precisely pinpoint the timing of the Sabbath – he gave an estimate of anywhere between 4:00 and 5:00 p.m. He said he hadn’t checked the precise time before giving his estimate. Whether the time was 5 o’clock or 6 o’clock is immaterial in all the circumstances. The point of the evidence was that there would not have been insufficient time on the afternoon of Friday, February 19th to complete all of the arrangements that were necessary for Vasiliadis to transfer the lease to Lugassy and the trial judge accepted that evidence. Further he found that the appellant, Malka was not a credible witness.

[12] Even if the evidence were admitted, in our view, it would make no difference to the result.

[13] Accordingly, the test for the admission of fresh evidence is not met.

[14] The motion is dismissed.

“K. Feldman J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”