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Damages - Finality. Markham Village Shoppes Limited v. Gino's Pizza Ltd.
In Markham Village Shoppes Limited v. Gino's Pizza Ltd. (Ont CA, 2018) the Court of Appeal pronounces on an exception to the damages 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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