



COURT OF APPEAL FOR ONTARIO

CITATION: St. Amand v. Tisi, 2018 ONCA 106

DATE: 20180206

DOCKET: C63870 and C63871

Laskin, Miller and Paciocco JJ.A.

BETWEEN

Claude St. Amand

Applicant (Respondent)

and

Lynn Tisi

Respondent (Appellant)

Derek A. Schmuck, for the appellant

Duncan M. MacFarlane, for the respondent

Heard: December 21, 2017

On appeal from the judgment of Justice Theresa Maddalena
    of the Superior Court of Justice, dated May 19, 2017, with reasons reported at
    2017 ONSC 3125, 78 R.P.R. (5th) 124.

REASONS FOR DECISION

A.

Overview

[1]

The appellant, Lynn Tisi, appeals the decision of the application judge
    declaring that there was no valid Agreement of Purchase and Sale between the
    parties.

[2]

The respondent, Claude St. Amand, a builder, agreed to build a home in
    Welland for Tisi. Their mutual real estate agent, Alain Raby, prepared an Agreement
    of Purchase and Sale. St. Amand signed the Agreement electronically on November
    2, 2016; Tisi signed it on November 4, 2016.

[3]

In addition to signing the Agreement, Tisi made changes to Schedule D to
    the Agreement. Schedule D sets out the standard specifications for the home. In
    six places, Tisi struck out the phrase builders samples, and initialled the
    changes. These changes were not initialled by St. Amand, and the application
    judge found that St. Amand was unaware of them at the time.

[4]

St. Amand began to build the home. But in mid-January 2017, the parties
    reached an impasse over the choice of supplier for the kitchen cabinets. Tisi
    was unhappy with St. Amands choice of supplier. She wanted to use her own
    supplier, a company called Mission Cabinetry, and she insisted that St. Amand
    pay Mission Cabinetry a $20,000 deposit. St. Amand refused to use Mission
    Cabinetry because he did not know the company and could not warrant its work
    for the Tarion Home Warranty Program.

[5]

With the impasse unresolved, each party then brought an application to
    court. St. Amand sought a declaration that the Agreement of Purchase and Sale
    was void. Tisi sought specific performance and tied up the property by putting
    a certificate of pending litigation against it. The application judge found in
    favour of St. Amand. At para. 37, she concluded that there was no valid Agreement,
    because [t]hese parties were not on the same page and [t]here was never a
    true meeting of the minds.

[6]

On her appeal, Tisi submits that the application judge made numerous
    errors of law in concluding that there was no valid Agreement of Purchase and Sale
    between the parties. She also seeks leave to introduce fresh evidence to show
    that St. Amand was aware of the changes to Schedule D before he began to build
    the home. In response, St. Amand also seeks leave to introduce fresh evidence.
    For the brief reasons that follow, we decline to admit the fresh evidence and
    we dismiss Tisis appeal.

B.

Discussion

(1)

The fresh evidence motions

[7]

The application judge found that St. Amand first learned of Tisis
    changes to Schedule D in January 2017, some two and half months after he signed
    the Agreement of Purchase and Sale. At para. 53 of her reasons she said: [P]rior
    to this time, the amendments and interlineations were neither disclosed to him
    nor agreed to by him. Tisi seeks to undermine the application judges finding
    by filing the affidavit of the parties mutual real estate agent, Raby, whom Tisi
    has sued separately. If necessary, St. Amand seeks leave to file his affidavit
    to respond to Rabys affidavit.

[8]

Paragraph 134(4)(b) of
the

Courts of Justice Act
, R.S.O. 1990, c. C.43, permits this court to
    receive fresh evidence in a civil appeal. The test for admitting fresh evidence
    is well established. The party seeking to introduce the fresh evidence must
    show that the proposed evidence:

·

Is credible;

·

Could not have been obtained by reasonable diligence before trial
    or application; and

·

If admitted, would likely be conclusive of an issue in the
    appeal.

The overriding criterion is that fresh evidence will
    be admitted only where it is in the interests of justice to do so. See:
Center
    City Auto Sales Inc. v. Kalsatos
, 2013 ONCA 373, at paras. 3-4; and
Sengmueller
    v. Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.), at para. 9.

[9]

Even if the evidence proffered by Tisi is credible and might be relevant
    to an issue on the appeal, it does not meet the due diligence requirement,
    and the interests of justice do not warrant its admission.

[10]

A
    failure to meet the due diligence requirement is not always a bar to admitting
    fresh evidence. There are, however, cases where a failure to exercise due
    diligence renders the admission of the fresh evidence not in the interests of
    justice: see
e.g. Stekar v. Wilcox
, 2017 ONCA 1010, at para. 27; and
Mason
    v. Mason
, 2016 ONCA 725, 403 D.L.R. (4th) 64, at para 197. The due
    diligence requirement plays a particularly important role in civil proceedings,
    where the need for finality is a principal consideration:

Most often, evidence offered on appeal seeks to place different
    facts before the appeal court than were considered by the court of first instance.
    In the typical case, the appellant asks the appeal court to consider the new
    evidence in combination with the evidence adduced in the lower court, and to
    arrive at different factual findings based on the enhanced evidentiary record.
    In essence, the appellant asks for a reconsideration of the facts based on
    evidence not adduced in the court below.
Finality concerns, especially
    important in civil proceedings, demand a restrictive approach to the
    admissibility of evidence on appeal. The due diligence inquiry, an important
    consideration in determining whether to admit fresh evidence on appeal,
    reflects the restrictive approach taken to the admission of fresh evidence on
    appeal
. [Emphasis added.]

See:
Iroquois Falls Power Corp. v. Ontario
    Electricity Financial Corp.
, 2016 ONCA 271, 398 D.L.R. (4th) 652, at para.
    49, leave to appeal refused, [2016] S.C.C.A. No. 279.

[11]

Stekar
is a recent example of a case where an appellants failure to meet the due
    diligence requirement alone was sufficient to bar admission of the evidence. In
    dismissing the motion for fresh evidence, the court observed at paras. 30-31
    that:

With reasonable due diligence, [the individual whose evidence
    the appellant sought to proffer] could have been contacted before or during the
    trial  or even shortly after its conclusion, rather than many months after the
    release of the trial judgment.

Nothing in the appellant's materials on his fresh evidence
    motion suggests that the information  could not have been obtained prior to or
    during the trial. To the contrary, the motion materials confirm that it was
    only after the release of the trial judgment that the appellant renewed his
    efforts to contact [the individual].
It is not open to the appellant, at
    this late date, to attempt to shore up the case he led at trial by now
    introducing evidence that readily could have been obtained at a much earlier
    date upon the exercise of reasonable diligence
. [Emphasis added.]

[12]

The
    courts comments in
Stekar

are applicable to the present case.
    Rabys evidence could have been obtained before the applications were heard,
    instead of many months after the release of the application judges judgment.
    The question when St. Amand became aware of the changes to Schedule D was a
    live issue before the application judge. Knowing that it was a live issue, and
    knowing that Raby  who prepared the Agreement of Purchase and Sale  might be
    able to offer evidence on this issue, Tisi seemingly chose not to contact Raby
    or lead his evidence.

[13]

It
    is not in the interests of justice to admit the fresh evidence, both because of
    finality concerns, and because Tisi should not be permitted to try to shore up
    or recharacterize her case at this late stage with evidence she could have
    obtained much earlier. We therefore dismiss both motions.

(2)

Did the application judge err in declaring that there was no valid
    Agreement of Purchase and Sale between the parties?

[14]

In
    her factum, Tisi has set out a long list of alleged errors of law made by the
    application judge. None of these alleged errors bear on the essence of the
    application judges reasons or what caused the parties initial arrangement to
    fall apart.

[15]

The
    application judge made two key findings of fact that are fatal to Tisis
    position on appeal.

[16]

The
    first finding relates to the interpretation of Schedule D to the Agreement of
    Purchase and Sale. Schedule D, under the heading Cabinetry Package,
    stipulated: Suppliers can vary based on purchasers preference. Could be a
    Lowes Cabinet or from Upper Kitchen Cabinets Supplies. Tisi took the position
    that this clause entitled her to pick her own supplier for the kitchen
    cabinets.

[17]

The
    application judge found otherwise. At para. 33, she found that the agreement
    does not state Tisi could attend to a cabinetmaker of her sole choice.

[18]

The
    second finding relates to the impact of Tisis amendments to Schedule D on the
    validity of the Agreement. At paras. 34-37, the application judge observed that
    Tisis amendments revealed the parties inability to agree on material terms.
    On one hand, Tisi had made not  insignificant amendments, which Tisi
    believed permitted her to use whatever supplier she wished and compel St.
    Amand to pay. On the other hand, St. Amand had expected that what would be
    used would be his builders samples in accordance with his suppliers.

[19]

And
    thus, the application judge found that, by Tisis amendments to Schedule D and
    Tisis understanding of the impact of these amendments, Tisi made a
    fundamental change to the Agreement of Purchase and Sale. On this basis, the
    application judge concluded that the parties had different perspectives of
    what is in this contract  [and] what it is intended to say, which
    demonstrated there had been no meeting of the minds.

[20]

Both
    of the application judges findings are entitled to deference from this court
    and we decline to interfere with them. These findings are sufficient to decide
    this appeal.

[21]

Even
    apart from these findings, and setting aside the legal niceties of the case,
    St. Amand acted reasonably throughout and Tisi did not.

[22]

St.
    Amand was reasonably justified in refusing to use a kitchen supplier he had
    never dealt with and in refusing to pay this supplier a $20,000 deposit from
    his own money. Even so, St. Amand proposed to Tisi that she contract directly
    with Mission Cabinetry and pay for its work, and that he would then give her a
    credit against the purchase price for the home. Tisi refused. She continued to
    insist St. Amand had to agree to pay for her choice of supplier. Her position
    was unreasonable and it was at odds with application judges finding.

[23]

Then
    Tisi asked St. Amand to put together a proposal for her to buy the home on an
    as is basis. St. Amand did so. Tisi never replied to the proposal. Instead,
    she registered a certificate of pending litigation against the property.

[24]

The
    application judge might have looked at this dispute differently. But her
    decision is consistent with the equities of the case, which overwhelmingly
    favoured St. Amand.

C.

Disposition

[25]

The
    appeal is dismissed with costs, including the costs of the fresh evidence
    motions, in the amount proposed by St. Amand, $9,000, inclusive of
    disbursements and HST.

John
    Laskin J.A.

B.W.
    Miller J.A.

David M.
    Paciocco J.A.


