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Appellate Litigation

The principle of finality in law seeks to ensure that what is decided is left alone unless there are errors in law on appeal. Where there are no errors, but there is fresh evidence, which would have been both admitted and had an impact on the damages awarded, should it be admitted on an appeal?

The Exception

The Ontario Court of Appeal (“ONCA”), in its decisions of Mercer et al. v. Sijan et al and Sengmueller v. Sengmueller, has recognized a limited exception in circumstances where:

  1. a supervening event occurs after trial but before the hearing of the appeal;
  2. evidence of that event is needed to address issues raised on appeal; and
  3. not receiving the evidence could result in an injustice.

When these criteria are established, an appellate court is permitted to admit and consider the fresh evidence.

An Example

In Markham Village Shoppes v. Gino’s Pizza Ltd, the ONCA was faced with the issue on appeal. The defendant tenant had leased commercial space for ten (10) years from the plaintiff landlord. The tenant attempted to repudiate the lease four months later on the grounds that the premises were not suitable. The landlord treated the lease as abandoned or repudiated, took possession, sought to re-let the unit and sued for damages.

At the trial the landlord was successful. One of the heads of damages was the loss twenty-two (22) months of future rent. The period used was based on the landlord’s evidence at trial that this was the average time it took to rent a unit in the plaza.

However, within two months of the decision, the landlord was successful in renting the unit. It did so in only ten (10) months, not the projection or estimate of twenty-two months (22) used at the trial. The landlord’s actual damages form a prospective loss of rent was now firm and over-stated at trial by a full year.


As a result, the damage award was set aside and the matter was referred back to the Ontario Superior Court of Justice for a trail to determine the appropriate damage award. The ONCA reminded the parties that in every summary judgment motion both parties are required to put their best foot forward.

Rule 59.06

Ordinarily, the introduction of such new evidence, of facts arising after judgement, would be dealt with by a motion under Rule 59.06. The relevant part of the Rule reads as follows:

59.06(2) A party who seeks to’

(a) have an order set aside or varied on the ground of fraud or of     facts arising or discovered after it was made;

may make a motion in the proceeding for the relief claimed.

Ideally, this would be to, and before, the same judge, who made the original Order or Judgement.

At Milosevic & Associates, our team of Toronto corporate commercial lawyers regularly represent clients in complex commercial litigation matters ranging from straightforward contract and partnership disputes to complex multi-party commercial claims including dealing with claims of oppression. Our lawyers represent clients in judicial reviews and appeals of judgments, orders, and other decisions at all levels of court including the Divisional Court, Ontario Court of Appeal, the Federal Court of Appeal, and the Supreme Court of Canada. Call us at 416-916-1387 or contact us online for a consultation.