Date: 20030304
Docket: A-595-02
Neutral citation: 2003 FCA 114
Present: The Honourable Justice Sharlow
BETWEEN:
SASKATCHEWAN WHEAT POOL
Appellant
and
ARMONIKOS CORPORATION LTD.
Respondent
"Dealt with in writing without appearance of parties."
Order delivered at Ottawa, Ontario, March 4, 2003
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20030304
Docket: A-595-02
Neutral citation: 2003 FCA 114
Present: The Honourable Justice Sharlow
BETWEEN:
SASKATCHEWAN WHEAT POOL
Appellant
and
ARMONIKOS CORPORATION LTD.
Respondent
REASONS FOR ORDER
[1] The appellant Saskatchewan Wheat Pool (SWP, the respondent at trial) has moved for an order under Rule 351 permitting evidence to be presented on this appeal. There is no dispute as the applicable principles. The evidence must be credible, practically conclusive on the appeal, and it must be evidence that could not, with due diligence, have been presented at trial.
[2] It is the position of SWP that the proposed new evidence establishes that a certain telephone call that the Trial Judge found was made on April 20, 2000 between 2:09 p.m. and 2:31 p.m., Montreal time, was not in fact made. The reasons for judgment refer to the telephone call at paragraphs 56 and 57. Mr. Stavrinidis, the principal of Scandia Shipping Agencies of Montreal, an agent for the respondent Armonikos Corporation Ltd. (Armonikos, the plaintiff at trial), testified that there was a telephone call on that date and at that time between himself and Mr. Varley, a representative of SWP.
[3] The Scandia telephone log was evidence at the trial. It has columns for "date", "time", "duration" and "number dialed". There is an entry for April 20 at 14:19 showing a telephone number, which I assume is the telephone number for Mr. Varley in Vancouver, but there is nothing in the column entitled "duration".
[4] The new evidence is a document containing a written response of counsel for Armonikos to an undertaking made in pre-trial examinations for discovery. The response contains a statement that Scandia believed that if there is nothing in the "duration" column of its telephone log, it means that the call was never completed or the call was a local call. Counsel for SWP obviously had this document before the trial, but argues that he was not aware that Armonikos would adduce evidence that would make it relevant.
[5] I accept the submission of Armonikos that SWP could, with due diligence, have presented the proposed evidence at trial. Armonikos provided portions of the transcript of its counsel's opening statement at trial, and portions of the transcript of the evidence of Mr. Stavrinidis dealing with the telephone call in issue. In my view, counsel for SWP should have been aware that if the Trial Judge believed that the telephone call occurred, it would work against the appellant.
[6] For the foregoing reasons, the motion is denied. The respondent is entitled to its costs of this motion in any event of the appeal.
"K. Sharlow"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-595-02
STYLE OF CAUSE: SASKATCHEWAN WHEAT POOL
and
ARMONIKOS CORPORATION LTD.
PLACE OF HEARING: Dealt with in writing at Ottawa, Ontario
DATE OF HEARING: March 4, 2003
REASONS FOR Order : Sharlow J.A.
DATED: March 4, 2003
APPEARANCES:
William M Burris FOR THE APPELLANT
George J. Pollack FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bull Housser & Tupper
Vancouver BC FOR THE APPELLANT
Davies Ward Phillips & Vineberg
Montreal, Quebec FOR THE RESPONDENT