COURT OF APPEAL FOR ONTARIO

CITATION: Om Sai Physiotherapy Clinic Inc. v. Kucher, 2015 ONCA 711

DATE: 20151023

DOCKET: C60092

Feldman, Juriansz and Brown JJ.A.

BETWEEN

Om Sai Physiotherapy Clinic Inc.

Plaintiff (Appellant)

and

Robert Kucher

Defendant (Respondent)

AND BETWEEN

Robert Kucher

Plaintiff by Counterclaim

(Respondent)

and

Om Sai Physiotherapy Clinic Inc. and V.P. Raju

Defendants by Counterclaim

(Appellants)

Pathik Baxi and Amrita Mann, for the appellants

Margherita Barbagallo, for the respondent

Heard and released orally: October 2, 2015

On appeal from the order of Justice Jamie K. Trimble of the Superior Court of Justice, dated February 4, 2015, with reasons reported at 2015 ONSC 814.

ENDORSEMENT

[1] This is an appeal by Om Sai Physiotherapy Clinic Inc. (the “Clinic”) and Mr. V.P. Raju from the order of Trimble J., dated February 4, 2015. Together with the appeal, the appellants have brought a motion for leave to file fresh evidence which was not before the motion judge.

[2] The motion judge, by his order of February 4, 2015, dismissed the Clinic’s main action against the respondent, Robert Kucher, for delay and for failure to comply with undertakings obligations. The motion judge struck the appellants’ Reply and Defence to Counterclaim for their failure to comply with the interlocutory order of Van Melle J., dated November 8, 2013, and he dismissed Mr. Raju’s motion to dismiss the counterclaim against him personally.

[3] In reviewing the reasons for judgment of the motion judge, we conclude that he applied the correct legal principles and did not misapprehend the evidence before him about the non-compensable prejudice to the respondent that the absence of certain of the appellants’ records might cause.

[4] As a result, we see no error by the motion judge in his exercise of discretion, on the record as it existed before him.

[5] However, we have before us the appellants’ motion for leave to file fresh evidence. The fresh evidence consists of bank statements and other financial documents that the appellants undertook to produce on the examination for discovery of the Clinic’s representative on July 15, 2011, but had not produced by the time of the motion.

[6] The fresh evidence does not meet the due diligence requirement under Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759. Obviously, the documents which constitute the fresh evidence were available not only at the time of the motion, but at the time the undertakings were given back in 2011. In ordinary circumstances, this would be sufficient to refuse to admit the fresh evidence. However, in this case, the fresh evidence is relevant not only to the Clinic’s claim, but also to the appellants’ defence to the respondent’s counterclaim – specifically, to their defence to the respondent’s claim for damages for defamation. The counterclaim raises much the same evidentiary issues as does the claim. For example, whether a misappropriation of funds occurred remains a live issue in the counterclaim as a defence by the appellants to the defamation allegation. The respondent intends to pursue his counterclaim, and the fresh evidence therefore is relevant to an on-going action.

[7] With the fresh evidence now showing that the undertakings are complete, and with the fresh evidence remaining relevant to the respondent’s counterclaim, we grant the motion for leave to file fresh evidence and we allow the appeal, restore the Clinic’s Statement of Claim and the appellants’ Reply and Defence to Counterclaim, and restore the Clinic’s action to the Brampton trial list.

[8] However, we vary the costs award below to $3,000, payable by the appellants to the respondent. It was the appellants’ delay in fulfilling their undertakings that caused the problem and that delay was completely within the appellants’ control to cure.

[9] There will be no costs of this appeal.

“K. Feldman J.A.”

“R.G. Juriansz J.A.”

“David Brown J.A.”