Coles v. Coles, 2014 NLCA 3

Date: 201401 14 Docket: 13/74 Citation: Coles v. Coles , 2014 NLCA 3 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: LINDA COLES APPLICANT AND: BOYD COLES RESPONDENT Coram: Green C.J.N.L., Mercer and Harrington JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 200702U1007 Application Heard: January 14, 2014 Judgment Rendered: January 14, 2014 (Orally) Memorandum of Disposition Filed: January 17, 2014 Counsel for the Appellant: Self Represented Counsel for the Respondent: Ellen Turpin MEMORANDUM OF DISPOSITION Green C.J.N.L.: [ 1 ] In this appeal from a decision of the Family Division dealing with spousal support and division of matrimonial debts and property, the appellant ( Ms.

Coles) applied, pursuant to rule 57.21(1) of the Rules of the Supreme Court, 1986 , for the admission of fresh evidence on the appeal. [ 2 ] At the conclusion of the hearing, the panel denied the application, concluding that the evidence which Ms. Coles wanted to submit did not meet the test for admission of fresh evidence.

[3] The test for reception of fresh evidence in civil cases is a stringent one. The evidence can only be admitted if there are, in thewords of rule 57.21(1), “special grounds”. As noted by Gushue J.A in Tucker v. Fort Amherst Seafoods Limited, (1988), (NL CA), 68 Nfld. & P.E.I.R. 75 (NFCA) at p. 77, it is “an indulgence that is to be exercised with great caution.” This reflects thepolicy concern that “from the point of view of the administration of justice generally, there must be finality to litigation”: per Steele J.A.in Hurley v. Moore, [1993] N.J. No. 278 [QL] at para 10.

It is not to be used to allow an appellant to “reshape his [or her] case” or toremedy a defect in the presentation in the court below: Tucker, at p. 77. [4] Generally, four criteria must be met before fresh evidence will be received on appeal: (

i) it could not, with due diligence, havebeen adduced at trial; (ii) it must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial; (iii) it must becredible in the sense that it is reasonably capable of belief; and (iv) it must be such that, if believed, it could reasonably, when taken withthe other evidence adduced at trial, be expected to have affected the result. See Sparkes-Morgan v. Webb, 2001 NFCA 55; Harvey v.Harte (1999), (NL CA), 176 Nfld. & P.E.I.R. 279 (NF CA); Humby v. Newfoundland and Labrador HousingCorporation, 2013 NLCA 4. [5] In this case, Ms.

Coles submitted that certain evidence respecting damage to and value of the matrimonial home was notpresented at trial either because certain subpoenas were quashed by the trial judge or because witnesses who, without subpoena,promised to testify at trial subsequently reneged on their promise.

She also says that subsequent to the completion of the trial but beforethe decision was released, she attempted to submit further evidence, consisting of written repair quotations from two contractors preparedafter the trial and documentation from her banker which she says supported her testimony at trial concerning her inability to borrowfunds to repair the home, but the court would not accept the evidence at that late date. [6] In the view of the panel, this does not qualify as fresh evidence.

The evidence was either available at or before the trial orcould, with due diligence, have been obtained earlier and submitted at trial. Ms. Coles says that she had difficulty, because of cost issues,in getting the material earlier (in the case of the bank information) and had to wait on preparation of other information (appraisals andcontractor’s reports of damages) before the bank could complete its assessment of her credit application.

This does not explain, however,why all of the information could not have been gotten earlier or, if she needed further time, she could have sought, if appropriate, anadjournment of the trial to allow this further evidence, if relevant and material, to be obtained and submitted. In any event, this litigationwas a long time coming to trial. There were several case management conferences at which trial logistics were discussed.

There wasample opportunity for issues respecting gathering and presenting evidence to be dealt with. [7] Under these circumstances, it is not appropriate to allow the presentation on the appeal of the type of evidence which Ms.Coles wishes the Court to consider. [8] The application was dismissed. Costs of the application will be dealt with by the appeal panel as part of the disposition on theappeal. J. D. Green C.J.N.L