Polar Supplies Ltd. v. Cape Dorset (Hamlet), 2013 NUCA 02

In the Court of Appeal of Nunavut Citation: Polar Supplies Ltd. v. Cape Dorset (Hamlet), 2013 NUCA 02 Date: 20130110 Docket: 03-12-12-006-CAP Registry: Iqaluit Between: Polar Supplies Ltd. Appellant -and- The Municipal Corporation of the Hamlet of Cape Dorset Respondent _______________________________________________________ The Court: The Honourable Justice A. Mahar Memorandum of Judgment Application regarding appeal book contents

MEMORANDUM OF JUDGMENT Amended Decision: An amended decision was issued on September 13, 2013; the corrections have been made to the text and the amendment is appended to this judgment. I. INTRODUCTION [ 1 ] This afternoon I will be dealing with three preliminary issues, before this matter gets set down for a hearing before a full panel of this Court. All three concern the contents of the appeal book, the first two being relatively minor issues and the third requiring a ruling on the inclusion of “new and fresh” evidence by the Appellant. II.

HISTORY [ 2 ] This is an appeal from the decision rendered April 12, 2012, by Justice Tulloch of the Nunavut Court of Justice on an application for an interlocutory injunction by the Appellant, Polar Supplies Ltd., which would have required the Hamlet Respondent to cease from engaging in work which, in the Appellant’s view, directly competes with the Appellant’s private sector business. This was the second time the Appellant had brought such an application, the first being before Justice Johnson of the same Court.

On both occasions the application was denied. [ 3 ] The affidavit evidence placed before Justice Tulloch by the Appellant showed, along with the particulars of the alleged misconduct, that the Appellant was in serious financial straits and was, in fact, near bankruptcy. Justice Tulloch did not appear to take issue with this assertion, but found that the Appellant had failed to sufficiently establish that the actions of the Respondent had caused this state of affairs. [ 4 ] Also before Justice Tulloch were a number of Statements of Claim by the Appellant.

An agreement had been reached with the Respondent with respect to the contents of an amended and consolidated Statement of Claim. While this Statement of Claim had not yet been filed, the proposed contents were before Justice Tulloch as an appendix to the Notice of Motion. III. ISSUES AND ANALYSIS [ 5 ] The Appellant seeks to include the earlier decision by Justice Johnson in the appeal book. The decision of Justice Johnson is not the decision that is being appealed and therefore should not be included in the appeal book.

The Appellant is free to include it in the book of authorities and refer to it as they see fit. [ 6 ] The Appellant seeks to include the amended statement of claim as filed, even though that filing did not take place until many months after Justice Tulloch heard the application under appeal. The Court of Appeal should have before it what was before Justice Tulloch.

As such, the Notice of Motion and appendix that were before her can be included in the Appellant’s materials, but not the Statement of Claim that was filed later. [ 7 ] The Appellant seeks to place in evidence before the Court of Appeal two affidavits, one by Garth Wallbridge, the trustee in control of Polar Supplies Ltd., dated December 6, 2012, and the other by Eric Sirrs, the trustee in bankruptcy, dated December 11, 2012. Both affidavits concern events that have taken place since the hearing before Justice Tulloch and provide evidence that Polar Supplies Ltd.

Is in even greater financial difficulty than it was at the time of the hearing.

[8] The submission of the Appellant is that this evidence is both “fresh” and “new” and that the test for admission should be that laidout in R v Palmer, (SCC), [1980] 1 SCR 759, 50 CCC (2d) 193 [Palmer]. Fresh evidence is evidence of events thatoccurred prior to the hearing in question but was not, for whatever reason, placed before the Court. The test in Palmer addresses theissues raised by this sort of evidence, including due diligence and relevance. [9] “New” evidence is exactly what a common sense understanding of the word “new” would suggest.

It is evidence of events thatoccurred after the hearing in question. It makes no sense to apply the Palmer test to new evidence. An appeal arises from a judicialdecision made on the basis of events as they were at the time of that decision. It would be nonsensical for appeal courts to considersubsequent events on anything approaching a regular basis, even when the appeal is from an interlocutory application. It would put theCourts of Appeal in the position of constantly re-trying the matters that appear before them. [10] It is for this reason that new evidence is usually inadmissible on appeal.

The test accepted by this Court is that new evidence willonly be allowed on appeal in exceptional circumstances, where it can be shown that the Judge at the first instance made assumptionsabout future events which the new evidence shows to have been substantially wrong. I also accept that this test will be more liberallyapplied when the appeal is from a decision on an interlocutory motion, because the substantive trial matters remain ongoing. [11] The evidence contained in the affidavits of Wallbridge and Sirrs is new evidence.

The fact that this evidence flows from an ongoingcontext which formed the basis of the application under appeal does not render it any less new. This argument could be made in any caseinvolving a continuing series of events, which can be said of virtually every case before the courts. The events described in the affidavitstook place after the hearing in front of Justice Tulloch and therefore are new evidence. I reject the characterization of the evidence by theAppellant as “fresh and new”. [12] I must then apply the test described above. Justice Tulloch accepted that Polar Supplies was near bankruptcy.

The proposed newevidence shows that Polar Supplies is now even nearer bankruptcy. It does not make out any clearer nexus between this state of affairsand the actions of the Respondent. There is nothing in the evidence that points to any mistaken assumptions about future events made byJustice Tulloch. IV. CONCLUSION [13] The new evidence, which is prima facie inadmissible, does not meet the test for admission under exceptional circumstances andwill, therefore, not be allowed to be placed in evidence before the Court of Appeal.

Appeal heard on December 13, 2012 Memorandum filed at Iqaluit, Nunavut This 10th day of January, 2013 Appearances: S. Cooper for the Appellant

S. Molgat for the Respondent ____________________________________________________________ Amendment of Reasons for Judgment Reserved of The Honourable Mr. Justice A. Mahar ¬¬¬¬¬¬¬¬-____________________________________________________________ The Court has been changed to “Nunavut Court of Appeal.” The citation has been changed to reflect that this is a 2013 decision of the NUCA; 2013 NUCA 02. The docket number has been changed to 03-12-006-CAP.

In paragraph [4], the last sentence is amended to read: “While this Statement of Claim had not yet been filed, the proposed contents were before Justice Tulloch as an appendix to the Notice of Motion.” In paragraph [6], the last sentence is amended to read: “As such, the Notice of Motion and appendix that were before her can be included in the Appellant’s materials, but not the Statement of Claim that was filed later.” Please replace the amended pages in your hard copy of the judgment. Amendment filed at Iqaluit, Nunavut

This 13th day of September, 2013 ___________________ Justice A. Mahar Nunavut Court of Appeal