COURT FILE NO.: FS-15-51AP
DATE: 20180205
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Melinda Morwald-Benevides, Applicant
AND:
Jeffrey Mark Benevides, Respondent
BEFORE: E.J. Koke J.
COUNSEL: Baaba Forson and Nikita Rathwell, for Ministry of the Attorney General, as Intervenor, for Non Party, Appellant (Respondent to Motion)
Sandra J. Meyrick, Respondent Amicus (Moving Party on Motion)
HEARD: February 5, 2018
Endorsement
motion by respondent Amici For an Order for Leave to Include Fresh evidence in the Appeal REcord, and for leave to serve the Named Respondent Party with The appeal documents by email
Background and Introduction
[1] The trial judge made two orders appointing amicus during the trial. Following the appointments, the Attorney General brought an intervenor motion to set aside the orders. The trial judge dismissed the motion, releasing written reasons in relation thereto on September 29, 2015. Four months later, on January 29, 2016 he released his written trial decision.
[2] The Attorney General has appealed the decision of the trial judge dismissing its motion to set aside the amicus.
[3] Amicus curiae was appointed to respond to the Attorney General’s Appeal and the amicus brings this motion, requesting an order:
a) admitting into evidence as Tab 1 in the responding amicus’ Appeal Record the trial decision (including reasons), dated January 29, 2016;
b) permitting the respondent amicus and the appellant intervenor to serve the named respondent party, Jeffrey Mark Benevides, with all documents relating to this appeal using email service.
Discussion
[4] The Attorney General does not object to service by way of email on the respondent, Jeffrey Mark Benevides. Mr. Benevides resides in Bermuda and the nature of the appeal is such that he would appear to have no further interest in this proceeding. Accordingly, I give leave to the respondent amicus and the appellant to serve Mr. Benevides by email.
[5] In support of the motion for leave to include a copy of the trial decision in the appeal record, the respondent amicus submits that the trial decision would provide this court with new and important information about the actions of the parties and the amici during the trial, and that this information would be highly relevant to the appeal.
[6] The Attorney General argues that the amici’s request for such leave does not meet the test for granting such leave.
[7] I have reviewed and considered the written submissions filed by the appellant and the respondent amici in support of their respective positions, and after doing so I have decided that the respondent amici’s request to have the trial decision included in the Appeal Record should not be granted. The reasons for my decision are as follows.
[8] Section 134(4)(b) of the Courts of Justice Act states that:
“a court to which an appeal is taken may, in a proper case, receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as the court directs to enable the court to determine the appeal”.
[9] The test which is applied in determining whether to admit fresh evidence is a three-pronged test which was affirmed by the Ontario Court of Appeal in Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 OR (3d) 208 (CA). The court stated at paragraph 9 of the decision:
- …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.
[10] In my view, the decision that the responding amicus wishes to have included in the Appeal Record meets the first two prongs of the test. It is credible and quite clearly it could not have been obtained prior to trial.
[11] With respect to the third prong of the test, I am not convinced that the information contained in the final decision of the trial judge will “likely be conclusive of an issue in the appeal”.
[12] I note that the trial judge provided lengthy and carefully considered reasons in support of his decision to deny the motion by the Attorney General to set aside the appointments. These reasons are set out in pages 7 through 35 of the appellant’s Appeal Record and form the basis for the motion decision that is under appeal.
[13] The issues in the trial proper were issues of custody and access. The trial decision focuses on and sets out reasons that are relevant to these issues.
[14] The case law is clear that motions to admit fresh evidence should not readily be granted, and that the test for admitting such evidence is high. As noted at paragraph 10 of Sengmueller, one obvious problem in admitting on appeal evidence that did not exist at the time of trial is that such evidence could not possibly have influenced the result at trial. There are other considerations as well. It is in the public interest that there be finality to litigation, and care must be taken to ensure that appeal courts do not become trial courts.
[15] In my view, courts should admit such evidence only in cases where the evidence is necessary to deal fairly with the issues on appeal, and where refusal to admit the evidence could lead to a substantial injustice.
[16] In view of the fact that the trial judge provided comprehensive reasons for his motion decision, I cannot find that there exists a potential for substantial injustice if I do not grant leave to admit the trial reasons as fresh evidence. Accordingly, I am denying this request by the responding amici.
[17] I do not expect that there will be a claim for costs, but if I am mistaken, I request that counsel provide me with written submissions within 10 days of the release of this decision.
Justice E.J. Koke S.C.J.
Date: February 5, 2018