I Cite as: Lewis v. Royal Insurance Company, 1990 NSCA 88 t IN THE SUPREME COURT OF NOV A SCOTIA I APPEAL DIVISION I BETWEEN: CECIL LEWIS I Appellant/ Applicant I - and - I ROYAL INSURANCE COMPANY OF CANADA I Respondent I ~ I I I BEFORE THE HONOURABLE MR. JUSTICE ANGUS L. MACDONALD IN CHAMBERS I I I [ S.C.A. No. 02241 ) Gerald R.P. Moir ) for the Appellant ) ) ) David Miller ) for the Respondent ) ) ) ) ) ) Application Heard: ) October 4, 1990 ) ) ) Decision Delivered: ) November 6, 1990 ) ) )
I t MACDONALD, J .A.: I These proceedings arise out of a fire loss to the home of the appellant, Cecil Lewis. The present application is by the respondent, the Royal Insurance I Company of Canada, to have removed from the appeal book, the report of G.R. I Forshner, Deputy Fire Marshall, dated April 28, 1988, which is now included in the appeal book filed by the appellant at Tab 1 of the volume entitled "Part II - Evidence I - Exhibits - Volume I - pages 1-418". Mr. Forshner did not testify at the trial. Expert evidence, however, was called by the insurance company and it would appear that I the Forshner report conflicts with such expert evidence. Mr. Forshner's report just I happened to be included in Exhibit 1 which was a large booklet of exhibits. Only passing reference was made to the Forshner report during the course of the trial. I My original inclination was to grant the application. Upon reflection, ~/ however, I have now concluded not to do so, but rather to refer the application to the panel of this Court which will be hearing the appeal. I have adopted this approach I primarily because applications to receive new evidence on appeal are invariably referred to the panel hearing the appeal and are not decided by the Chambers judge. I Upon reflection, therefore, and for the sake of consistency, I think the same position should be followed in the reverse case, namely, where evidence is sought to be excluded. I The application is, therefore, dismissed with costs in the cause. I I j I J.A. I \.., [ [
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