Varette v. Sainsbury

Varette v. Sainsbury

The Appellate Division erred in granting a new trial because the allegedly new evidence (date of Timmins sale) could have been discovered with reasonable diligence and would not be practically conclusive to establish plaintiffs' case; moreover the trial judge's finding that no vendor–purchaser relationship existed between Varette and the brokers is supported by the evidence, so the trial judgment dismissing the action must be restored.

Citation
[1928] SCR 72
Parties
Appellant / Defendant: O.E. Varette; Plaintiff / Respondent: S. Sainsbury; Plaintiff / Respondent: I.W.C. Solloway; Plaintiff / Respondent: C.A. Gentles; Plaintiff / Respondent: D.M. Hogarth; Defendant (party Owner of Units): Tremoy Lake Shore Mining Syndicate
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
16 December 1927
Procedural Posture
Civil Appeal From Appellate Division of the Supreme Court of Ontario (specific Performance Action) / Appeal to the Supreme Court of Canada After Appellate Division Ordered a New Trial; Seeking Restoration of Trial Judge's Dismissal
Outcome
Appeal allowed; judgment of Masten J. dismissing plaintiffs' action restored; order of Appellate Division granting a new trial vacated.
Legal Topics
Specific Performance, Agency and Authority, New Trial for Newly Discovered Evidence, Discovery Diligence, Vendor and Purchaser Relationship, Amendment to Pleadings, Statute of Frauds
Source Language
English
Contract Property Equity Civil Procedure Evidence Specific Performance Agency and Authority New Trial for Newly Discovered Evidence +4 more

Case Brief

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Parties

O.E. Varette

Appellant / Defendant

S. Sainsbury

Plaintiff / Respondent

I.W.C. Solloway

Plaintiff / Respondent

C.A. Gentles

Plaintiff / Respondent

D.M. Hogarth

Plaintiff / Respondent

Tremoy Lake Shore Mining Syndicate

Defendant (party Owner of Units)

Procedural Posture

Civil Appeal From Appellate Division of the Supreme Court of Ontario (specific Performance Action) / Appeal to the Supreme Court of Canada After Appellate Division Ordered a New Trial; Seeking Restoration of Trial Judge's Dismissal

Legal Issues

  1. 1 Whether a new trial should be granted on the ground of newly discovered evidence
  2. 2 Whether the new evidence could have been obtained with reasonable diligence before trial
  3. 3 Whether the new evidence would be practically conclusive

Ratio Decidendi

The Appellate Division erred in granting a new trial because the allegedly new evidence (date of Timmins sale) could have been discovered with reasonable diligence and would not be practically conclusive to establish plaintiffs' case; moreover the trial judge's finding that no vendor–purchaser relationship existed between Varette and the brokers is supported by the evidence, so the trial judgment dismissing the action must be restored.

Court Disposition

Appeal allowed; judgment of Masten J. dismissing plaintiffs' action restored; order of Appellate Division granting a new trial vacated.

Orders

  • Appeal allowed with costs
  • Judgment of Masten J. restored