Peter J. Henein

Following a motion for leave to appeal and a successful motion by the plaintiffs to exclude fresh evidence, the court determined the issue of costs.

The parties agreed that costs of the motion for leave should be left to the panel hearing the appeal.

For the motion to exclude fresh evidence, the court rejected the defendants' argument that a separate motion was unnecessary, noting the defendants attempted to introduce the same documents previously refused.

The court awarded the plaintiffs costs fixed at $765.

The appellants appealed a motions judge's decision finding that time was of the essence in a contract and that a fundamental breach had occurred.

The appellants also sought to introduce fresh evidence on appeal.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motions judge's application of the law from Sail Labrador Ltd. v. Challenge One (The).

The court also refused to admit the fresh evidence, concluding it did not meet the test for admission and was not relevant to the finding that time was of the essence.