



COURT OF APPEAL FOR ONTARIO

CITATION: Centre City Auto Sales Inc. v. Kalsatos, 2013 ONCA
    373

DATE: 20130605

DOCKET: C54068

Winkler C.J.O., Rouleau and Hoy JJ.A.

BETWEEN

Centre City Auto Sales Inc. and Gus Kalsatos

Plaintiffs (Appellants)

and

Alex
    Kalsatos, Center City Quality Cars Inc., Axela Finance Inc.

and Evelyn Watling

Defendants (Respondents)

Adam J. Ezer, for the appellants

Gregory W. Roberts, for the respondents Axela Finance
    Inc. and Evelyn Watling

Alex Kalsatos, acting in person

No one appearing for the
    respondent Center City Quality Cars Inc., now dissolved

Heard and released orally: May 27, 2013

On appeal from the judgment of Justice Sidney N. Lederman
    of the Superior Court of Justice dated June 27, 2011, with reasons reported at
    2011 ONSC 3768.

ENDORSEMENT

[1]

In this appeal, the appellants do not allege that the trial judge made
    any reviewable errors. The appellants have tendered voluminous amounts of proposed
    fresh evidence and they have conceded that if we do not admit it, there is no
    basis to allow the appeal.

[2]

The fresh evidence consists of documents, records and information that
    would in the usual course have been obtained through discovery of the
    respondents before trial. Because the respondents did not attend for their
    discoveries despite being served with notices of examination, discovery of the
    respondents was never carried out by the appellants. The fresh evidence could therefore
    have been obtained by the appellants exercise of reasonable due diligence and
    adduced at trial: all that was required was an order compelling the
    respondents attendance.

[3]

The test for admitting fresh evidence on appeal was set out in
Sengmueller
    v. Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.), at pp. 210-11, as follows:

Section 134(4)(
b
) of the
Courts of Justice Act,
R.S.O. 1990, c. C.43, gives a court to which an appeal is taken discretion in
    a proper case to receive further evidence by affidavit, transcript of oral
    examination, oral examination before the court or in such other manner as the
    court directs. What concerns the court is not whether it can admit new
    evidence, but whether the appeal before it is a proper case in which to do
    so.

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. [Citation omitted.]

[4]

The appellants argue that even though the proposed fresh evidence does
    not meet the due diligence requirement, this court should nonetheless admit it
    in the interests of justice. In effect, the appellants argue that because of the
    concessions the trial lawyer made at first instance and his failure to carry
    out proper discoveries, they have been left with a hollow judgment for an
    amount well below what they ought to have been awarded.

[5]

We understand that the appellants have instituted an action against
    their former solicitors for the alleged negligence.

[6]

In our view, the fresh evidence ought not to be admitted. The parties underwent
    a five-day trial and obtained a judgment on the merits. In the circumstances of
    this case, we see no basis for exercising our discretion in favour of admitting
    the fresh evidence.

[7]

As a result, the appeal is dismissed. Costs to the respondents Axela Finance
    Inc. and Evelyn Watling are fixed in the amount of $10,000, all inclusive.

W. Winkler C.J.O.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.


