



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 Clinics
    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. Rajus
    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 Clinics 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
, [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 Clinics claim,
    but also to the appellants defence to the respondents counterclaim  specifically,
    to their defence to the respondents 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 respondents counterclaim,
    we grant the motion for leave to file fresh evidence and we allow the appeal,
    restore the Clinics Statement of Claim and the appellants Reply and Defence
    to Counterclaim, and restore the Clinics 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.


