THE COURT OF APPEAL FOR SASKATCHEWAN PETER PATRICK and YVONNE PATRICK RESPONDENTS (Plaintiffs) and GEORGE HAGBLOM, H.G.L.M. ENTERPRISES LTD. and GEORGE HAGBLOM MASONRY LTD. APPELLANTS (Defendants) CORAM: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Wakeling The Honourable Madam Justice Gerwing COUNSEL: Mr. N. Stooshinoff for the Appellants Mr. G. Richards for the Respondents DISPOSITION: Appeal Heard: June 11, 1996 Appeal Dismissed: June 11, 1996 (orally) Reasons: June 21, 1996 On Appeal From: Q.B. No. 4252/92 Appeal File: 2106 Reasons by: The Honourable Mr. Justice Vancise In concurrence: The Honourable Mr. Justice Wakeling The Honourable Madam Justice Gerwing VANCISE J.A. (Orally) The appellants George Hagblom and George Hagblom Masonry Ltd. apply to adduce fresh evidence and to amend the statement of claim in the within action. The appellants contend that they instructed the solicitor who was acting for them at the time of the trial (and who is not the solicitor on the appeal) to call certain expert evidence dealing with the causation of the fire which destroyed the respondent's residence. The appellant's solicitor called no expert evidence concerning either the proper construction of the chimney, which was alleged to be faultily constructed, or the cause of the fire. The tests for the admission of fresh evidence on appeal are well known and are set out in R. v. Palmer, 1979 CanLII (SCC), [1980] S.C.R. 759; R. v. Stolar, 1988 CanLII 65 (SCC), [1988] S.C.R. 480; R. v. Osiowy and Osiowy (1989) 1989 CanLII 5146 (SK CA), 80 Sask. R. 14 (Sask C.A.). The appellant contends that the expert evidence which he wishes to tender is relevant, credible and if believed could reasonably, when taken with all the other evidence, be expected to have affected the result. He candidly concedes however that, with due diligence it could have been adduced at the trial. It is the appellant's contention that in the circumstances of this case the interests of justice require that the rule of due diligence should not be strictly applied. We are all of the opinion that the evidence was clearly available, clearly contemplated by the parties and for whatever reason not called. We are not persuaded that the application to adduce fresh evidence in this case should be allowed. 2- The application to adduce fresh evidence and to amend the statement of defence is denied. Dealing with the appeal proper, we are allo the opinion it must be denied. The standard of review is that as articulated in Lensen v. Lensen, 1987 CanLII (SCC), [1987] S.C.R. 672. We are not persuaded in the circumstances of this case that the trial judge either misapprehended or failed to take into account evidence which was before him in arriving at his conclusion concerning the causation of the fire. There was evidence which, if accepted, would permit the trial judge to make the findings of fact that he did and to award the damages based on those findings. The appeal is dismissed with costs on double Column V, including costs of the motion to adduce fresh evidence.
The appellants applied to adduce fresh evidence and to amend the statement of claim. The appellant's solicitor at the time of the trial had called no expert evidence concerning either the proper construction of the chimney, which was alleged to be faultily constructed, or the cause of the fire. HELD: The appeal was dismissed with costs on double Column V, including costs of the motion to adduce fresh evidence. 1)The evidence was clearly available, clearly contemplated by the parties and for whatever reason not called. 2)The trial judge neither misapprehended nor failed to take into account evidence which was before him in arriving at his conclusion concerning the causation of the fire. There was evidence to permit the trial judge to make the findings of fact that he did and to award the damages based on those findings.