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Digest of the Week | Evidence on appeal

Digest of the Week | Evidence on appeal

The Ontario Divisional Court did not allow an appellant to introduce new evidence on appeal because the evidence was available at time of hearing of application but appellants chose not to produce it.

T. Films S.A. v. Cinemavault Releasing International Inc
Ontario Divisional Court
2016 CarswellOnt 14838, 2016 ONSC 404, Linhares de Sousa J., Molloy J., Wilton-Siegel J. (Ont. Div. Ct.); affirming (2015), 2015 ONSC 6608, 2015 CarswellOnt 112, Penny J. (Ont. S.C.J.) [Ontario]

Practice on appeal -- Powers and duties of appellate court -- Evidence on appeal -- New evidence

Film owner, TF SA, TP SA and F Ltd., entered into sales agency agreement with film distributor CRI Inc., whose sub-agent was C US -- Gross receipts from sales of particular film were to be paid out according to prescribed methodology -- Owner proceeded with arbitration regarding unpaid distribution revenues -- C Group restructured film distribution operations in 2011, so CI Inc. collected CRI Inc.'s receivables and CRI Inc. was wound down -- Arbitrator awarded owner damages, interest, and costs on substantial indemnity basis -- Application judge granted owner's application against distributor, its affiliates, and principal for relief for damages for oppression and breach of trust -- Distributor, affiliates and principal (together, "appellants") appealed -- Appellants brought motion to admit fresh evidence, consisting of copies of contracts referable to receivables, worksheet showing recipient corporation of revenues, and forensic accounting report, on appeal -- Motion and appeal dismissed -- Appellants could not meet due diligence requirement on their own admission -- Evidence was available at time of hearing of application but appellants chose not to produce it -- There were questions respecting evidence such that it could not be said to be reliable on its face -- Any grounds of appeal based on failure of judge to take into account terms of contract that were not before him must fail.
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