Fresh evidence did not meet test for admissibility

Ontario civil | Appeal

Fresh evidence

Fresh evidence did not meet test for admissibility

Father loaned $38,550 to his son. Loan was secured by mortgage on son’s home. Many years later, son’s former spouse sought to sell home to satisfy equalization payment owing from their divorce. Son’s former spouse sought declaration that mortgage in favour of father was not binding on her and was not encumbrance on property. Application judge concluded that any claim by father on mortgage was statute-barred and that mortgage was not encumbrance or charge on property. Father appealed. Appeal dismissed. Fresh evidence father sought to rely on did not meet test for admissibility. Evidence could have been adduced at trial. There was interim order in application requiring father to produce his lawyer’s file. Explanation that documents were not produced due to administrative oversight was not acceptable explanation, particularly in face of disclosure order. Documents did not satisfy criteria in s. 23(1) of Real Property Limitations Act (Ont.) therefore there was no reason to conclude that evidence could reasonably have been expected to have affected result. Father’s own conduct disentitled him from claiming equitable remedy. Application judge found that father had acted in concert with his son to negatively impact son’s former spouse and to frustrate her legitimate right to realize her equalization payment.
Stetler v. Stetler (Mar. 17, 2016, Ont. C.A., G.R. Strathy C.J.O., P. Lauwers J.A., and M.L. Benotto J.A., CA C60610) Decision at 253 A.C.W.S. (3d) 949 was affirmed. 264 A.C.W.S. (3d) 557.

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