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Orders - Finality - Exception

Markham Village Shoppes Limited v. Gino's Pizza Ltd. (Ont CA, 2018)

In this case the Court of Appeal pronounces on an exception to the doctrine of finality when a landlord re-lets a premises after a summary judgment hearing ordered extensive damages for a breached lease:
[6] Although the principle of finality requires, generally, that damages for prospective loss be assessed as at the time of trial and not revisited, this court has recognized a limited exception where: (1) a supervening event occurs after trial but before the hearing of the appeal; (2) evidence of that event is needed to address issues raised on appeal; and (3) not receiving the evidence could result in an injustice: Mercer et al. v. Sijan et al. (1976), 1976 CanLII 654 (ON CA), 14 O.R. (2d) 12 (C.A.); Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at p. 211. When these criteria are met, a court may admit the evidence under the tests for the admission of fresh evidence in Sengmueller, or R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. This is such a case, as the supervening event – the re-letting of the premises 12 months earlier than the motion judge projected – would mean that the respondent could receive double recovery over that period. A fresh review of the damages to which the respondent is legally entitled is required as a result of this development.

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