In one of our early cases, this jurisprudence in addition to R. v. Legere was very helpful. Competing Oaths and a Judge's right to choose one oath or version of facts in a criminal case when there is no other evidence but when there is no other evidence except but the competing version of facts, it seems the Crown cannot meet their onus. But, I really can't say right now. I have to read the whole file first and we will see what we can do to get you the best result and...did you pay the $10.00 per month on your Angel Humble bill? See Sklar v. Borys, 1917 CanLII 121 (SK QB) This case references Anderson v. Titmas (36 L.T. 711) by Huddleston, B. Concerning Oath v. Oath jurisprudence.

Sklar v. Borys, 1917 CanLII 121 (SK QB)

Date:	1917-06-22
Other citations:	[1917] 3 WWR 188; 10 Sask LR 359
Citation:	Sklar v. Borys, 1917 CanLII 121 (SK QB), <http://canlii.ca/t/g769d>, retrieved on 2018-05-29

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Saskatchewan Supreme Court

[CHAMBERS]

Citation: Sklar v. Borys

Date: 1917-06-22

Practice—Review of Case by District Court Judge—New Trial—R.S.S. 1909, C. 53, S. 55—Fresh Evidence.

Held, That the power conferred by sec. 53 of the District Courts Act upon a District Court Judge to review and set aside his judgment and to grant a new trial is not an absolute power to be exercised upon any grounds that the Judge may think fit, but is subject to the same limitations respecting grounds as are imposed upon the Supreme Court en Banc in the granting of new trials. Murtagh v. Barry, 24 Q.B.D. 632 applied.

Appear by defendant from a decision of Wood, D.C.J., at Weyburn granting a new trial. The action was for wages and at trial Wood, D.C.J., gave judgment for the plaintiff. Subsequently the defendant applied to the trial Judge under sec. 53 of the District Courts Act for an order to view and set aside the judgment and to grant a new trial supporting the application by affidavit evidence, the purport of which was to contradict and falsify some material portions of the plaintiff’s testimony at trial. The application was also supported by material alleging the discovery of fresh evidence. The trial Judge granted the application and ordered a new trial. From this order the plaintiff appealed. The appeal was argued before Elwood, J. in Chambers.

Council:

P. H. Gordon, for plaintiff.

A. L. McLean, for defendant. .

[1]                     ELWOOD, J.—This is an appeal from” the order of the District Court Judge of the Judicial District of Weyburn ordering a new trial.

[2]                     In Martagh v. Barry, 24 Q.B.D. 632; 59 L.J.Q.B, 388, it was held that the power to grant new trials conferred upon the Judges of the County Courts, by sec. 93 of the County Courts Act, 1888, is not an absolute power to be exercised upon any grounds which the Judge may think fit, but subject to the same limitations as to the grounds on which a new trial may be granted as are imposed upon Judges of the Supreme Court.

[3]                     Sec. 93 of the County Courts Act above is in part as follows:

The Judge shall also in every case whatever have the power, if he shall think just, to order a new trial to be had upon such terms as he shall think reasonable and in the meantime to stay proceedings.

[4]                     It seems to me that sec. 55 of ch. 53 of the Revised Statutes of Saskatchewan does not go any farther than the above quoted section of the County Courts Act, and that, therefore, there would be the same limitations upon this power of the District Court Judges with regard to granting new trials as are upon the County Court Judges in England.

[5]                     In Knight v. Hanson, 3 W.L.R. 412; 7 Terr. L.R. 306, it was held that in an application for a new trial on the ground of discovery of fresh evidence, the new evidence required to support such an application must be conclusive in its character.

[6]                     In Young v. Kershaw, 81 L.T. 531, at p. 532, Smith, L.J. says:

It seems to me that the cases which have been referred to show that a new trial may be granted if new evidence, which could not have been obtained before, has been discovered which, if it had been adduced at the trial would have been conclusive so that the verdict must have been found otherwise than it was * * * * * * * Further it would only amount to oath against oath, and that is not enough as was pointed out in Anderson v. Titmas (36 L.T. 711) by Huddleston, B. How can it be said that this evidence, if adduced, would be conclusive?

[7]                     It seems to me in the case at bar that the new evidence proposed to be adduced would go no farther than contradict what the plaintiff had deposed to; it would as stated above by Smith, L.J. be “oath against oath.” It would not be conclusive.

[8]                     I am of the opinion also that the defendant did not show reasonable diligence in endeavouring to procure the evidence. An examination for discovery of the plaintiff would have disclosed what the plaintiff swore to at the trial, and the affidavit of the defendant shows that Anton Androka was to the knowledge of the defendant in Weyburn, the place where the trial was held, while the trial was proceeding; he could have been called by the defendant.

[9]                     I am of opinion, therefore, that the learned District Court Judge was in error in ordering a new trial. The result will be that the order ordering a new trial will be set aside and the defendant will pay the plaintiff’s costs of that application and of this appeal.

Appeal allowed with costs.