COURT FILE NO.: 91/04
DATE: 20040625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O'DRISCOLL, JENNINGS AND SWINTON JJ.
B E T W E E N:
DAVID F. HASS
Appellant/Tenant
- and -
JETEX INVESTMENTS INC.
Represented at first instance by its agent, 1041646 Ontario Ltd., of which Browning Property Services is a division
Respondent/Landlord
D. F. Hass, In Person
David S. Strashin, for the Respondent/ Landlord
HEARD: June 25, 2004
O'DRISCOLL J.: (Orally)
[1] The appellant/tenant, who appears in person, has filed, in a sealed brown envelope, an affidavit, containing proposed evidence. A copy has been furnished to each member of the Court. We have not opened the envelopes; we have not looked at the contents. We have heard submissions from Mr. Hass this morning as to why we should permit this "fresh evidence".
[2] Counsel for the landlord submits that this is not really fresh evidence, it is evidence that the tenant tried to adduce before the Tribunal without success.
[3] Based on the following decisions, in our view, it does not meet the test for fresh evidence.
[4] 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:
(i) It will do so when the tendered evidence is credible, and
(ii) The evidence proposed could not have been obtained by the exercise of reasonable diligence prior to the trial;
(iii) The evidence, if admitted, will likely be conclusive of an issue in the appeal.
See: Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 209, 210-211 per McKinlay J.A. See also: Cook v. Mounce (1979), 26 O.R. (2d) 129 and the judgment of Doherty J.A., in Hallum v. Canadian Memorial Chiropractic College (1989), 70 O.R. (2d) 119, 121.
[5] For these reasons, the motion to admit fresh evidence is dismissed.
O'DRISCOLL J.
JENNINGS J.
SWINTON J.
Date of Reasons for Judgment: June 25, 2004
Date of Release: July 13. 2004
COURT FILE NO.: 91/04
DATE: 20040625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O'DRISCOLL, JENNINGS AND
SWINTON JJ.
B E T W E E N:
DAVID F. HASS
Appellant/Tenant
- and -
JETEX INVESTMENTS INC.
Represented at first instance by its agent, 1041646 Ontario Ltd., of which Browning Property Services is a division
Respondent/Landlord
ORAL REASONS FOR JUDGMENT
O'DRISCOLL J.
Date of Reasons for Judgment: June 25, 2004
Date of Release: July 13, 2004