In Turbo Logistics Canada Inc. v. HSBC Bank Canada, Baker & McKenzie’s litigation team was successful in upholding at the Ontario Court of Appeal, the trial decision awarding HSBC judgments in fraud for over $10.3 million dollars. At trial, Madam Justice Ruth Mesbur accepted the argument that “but for” the false statements made by the appellants, HSBC would never have made the loan and therefore the bank deserved damages equal to 100% of its loss on the loan. On appeal, the appellants argued that their rights under Canada’s Charter of Rights and Freedoms had been violated during the trial and that the trial should never have proceeded because an adjournment should have been granted.

In coming to its decision, the Court of Appeal analyzed the applicable principles with respect to a court’s discretion to grant or refuse an adjournment of a trial. Writing for the Court, Chief Justice George R. Strathy found that the appeal must be dismissed because:

  • the adjournment request was made shortly before the trial;
  • the appellants were sophisticated businessmen and the issues at trial related to matters within their personal knowledge;
  • the appellants had nothing to lose and everything to gain from attempting to delay the trial whereas HSBC would have been seriously prejudiced by further delay;
  • there is a broader public interest in avoiding last minute adjournments, which waste judicial resources and cause prejudice when “stale” cases gets more stale; and
  • the trial was conducted fairly and the result was in keeping with interests of justice.

The Court of Appeal also dismissed the Appellants’ motion to adduce evidence that they could have tendered at trial on the basis that it was manifestly contrary to the principles laid down in R. v. Palmer, [1980] 1 S.C.R. 759. The “Palmer test” holds that fresh evidence may only be admitted if four criteria are met:

  1. the evidence could not through due diligence have been adduced at trial;
  2. the evidence is relevant in that it bears on a decisive or potentially decisive issue;
  3. the evidence is credible; and
  4. the evidence, if believed and taken with the other evidence, could be expected to affect the result.