Dated: 20000403 2000 SKCA 39 Docket: 2096 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Tallis, Vancise Lane JJ.A. DONALD BROWN AND EDNA BROWN and THE WAWANESA MUTUAL INSURANCE COMPANY COUNSEL: Mr. Bill Selnes for the Appellants Mr. Greg Thompson for the Respondent DISPOSITION: On Appeal From: Q.B. 787/94, J.C. of Prince Albert Application Heard: 03 April 2000 Application Allowed: 03 April 2000 (Orally) Written Reasons: 05 April 2000 Reasons By: The Honourable Mr. Justice Tallis In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane TALLIS J.A. (Orally) [1] We have before us a motion by the appellants to admit fresh evidence, which if allowed, mandates a new trial. [2] At the outset we observe that although this application is in the context of civil action, it does have significant criminal overtones in that the respondent alleges arson in paragraph four of its statement of defence which reads: 4. The Defendant says that the fire was not accidental in origin but was deliberately set by person insured under the policy. [3] We are all of the opinion that the "fresh" evidence of Mr. T.V. Jones should be admitted and a new trial ordered. In this case the strictness of the due diligence requirement should be relaxed in light of the allegation of arson. Although the expert evidence of Mr. Jones was available, counsel at trial failed to competently present this evidence on behalf of the appellants: see for example Canadian Imperial Bank of Commerce v. George Leslie Wilson Freeman, unreported, Sask. C.A., March 14, 1996. [4] We also find that the proffered fresh evidence could reasonably have affected the result at trial, particularly with respect to the "cause of the fire". [5] The appellants shall pay the respondent's costs of the trial, to be taxed on party and party basis, on or before July 15, 2000. The appellants shall also pay the respondent's costs of all proceedings in this Court including this motion and preparation for the appeal, with the same to be taxed on double Column and paid on or before July 15, 2000. In default of payment of these costs, the appellant shall be liable, on application to this Court, to have their claim struck out and the action dismissed.
The appellants sought to admit fresh evidence. HELD: 1)A new trial was ordered. The due diligence requirement was relaxed in light of the allegation of arson in the respondent's statement of defence. Although the expert evidence was available at trial, counsel failed to competently present the evidence. The fresh evidence could reasonably have affected the trial result respecting the cause of the fire.  2)The appellants were to pay party and party costs plus the respondent's cost of all proceedings in the Court of Appeal including preparation for the appeal taxed on double column V on or before July 15, 2000. In default of payment the appellant's claim may be struck.