Docket: 1956 Shirley Milligan Moffat Appellant (Applicant) - v. -, 2012 SKCA 54

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 54 Date: 20120509 Between: Docket: 1956 Shirley Milligan Moffat Appellant (Applicant) - and - Royal Bank of Canada Respondent (Respondent) Before: Lane J.A. (in Chambers) Counsel: Shirley Milligan Moffat the Applicant appearing by telephone James Morrison for the Respondent appearing by telephone

Application: From: 2010 SKQB 191 Heard: May 9, 2012 Disposition: Allowed in part (orally) Written Reasons: May 10, 2012 By: The Honourable Mr. Justice Lane Lane J.A. [ 1 ] This is an application to amend a Notice of Appeal and for an order allowing the applicant to adduce fresh evidence. The appeal arises from the dismissal, after trial, of the applicant's action against the Royal Bank of Canada wherein the applicant's claims of breach of contract, breach of fiduciary duty, conversion and damages were dismissed. The facts are completely set out in the judgment of Mills J. dated May 28, 2010 ( 2010 SKQB 191 ). [ 2 ] The Royal Bank of Canada took no issue with the amendment to paragraph 4(

a) of the Notice of Appeal and this amendment is allowed. [ 3 ] The applicant’s remaining two issues are intertwined and arrive from admissions filed at trial which the applicant contends raised the proposed new ground which is an allegation of fraud. The admissions were clearly before the trial judge and cannot constitute fresh evidence. The second proposed amendment arises from these very admissions and attempts to raise a new ground for the first time on appeal.

This does not constitute a new ground but is essentially an argument the trial judge either misconstrued, misapprehended or ignored relevant evidence, i.e. the admissions filed. The matter could have been addressed at trial but was not, seemingly because the applicant and her counsel were surprised. Again, this is not really a new issue but is simply argument for appeal and the application to amend the relevant section, i.e.

section 8, is dismissed as is the application to adduce fresh evidence. [ 4 ] Costs are left to the panel hearing the appeal.