Normally, a motion judge's decision dismissing an action for
delay is entitled to considerable deference. Similarly (from the
perspective of encouraging finality), a motion to admit fresh
evidence on appeal will generally not be allowed if the evidence
could have been tendered in the Court below through reasonable
diligence. However, in Om Sai Physiotherapy Clinic Inc. v.
Kucher, released publicly on October 23, 2015, the Ontario
Court of Appeal allowed fresh evidence to be admitted even though
it did not meet the diligence requirement. This was because the
evidence remained relevant to an ongoing counterclaim. Though the
dismissal of their action was overturned, the appellants
nonetheless suffered costs consequences in these circumstances. The
 In reviewing the
reasons for judgment of the motion judge, we conclude that he
applied the correct legal principles and did not misapprehend the
evidence before him about the non-compensable prejudice to the
respondent that the absence of certain of the appellants'
records might cause.
 As a result, we see
no error by the motion judge in his exercise of discretion, on the
record as it existed before him.
 However, we have
before us the appellants' motion for leave to file fresh
evidence. The fresh evidence consists of bank statements and other
financial documents that the appellants undertook to produce on the
examination for discovery of the Clinic's representative on
July 15, 2011, but had not produced by the time of the motion.
 The fresh evidence
does not meet the due diligence requirement under Palmer v. The
Queen,  1 S.C.R. 759. Obviously, the documents which
constitute the fresh evidence were available not only at the time
of the motion, but at the time the undertakings were given back in
2011. In ordinary circumstances, this would be sufficient to refuse
to admit the fresh evidence. However, in this case, the fresh
evidence is relevant not only to the Clinic's claim, but also
to the appellants' defence to the respondent's counterclaim
– specifically, to their defence to the respondent's
claim for damages for defamation. The counterclaim raises much the
same evidentiary issues as does the claim. For example, whether a
misappropriation of funds occurred remains a live issue in the
counterclaim as a defence by the appellants to the defamation
allegation. The respondent intends to pursue his counterclaim, and
the fresh evidence therefore is relevant to an on-going action.
 With the fresh
evidence now showing that the undertakings are complete, and with
the fresh evidence remaining relevant to the respondent's
counterclaim, we grant the motion for leave to file fresh evidence
and we allow the appeal, restore the Clinic's Statement of
Claim and the appellants' Reply and Defence to Counterclaim,
and restore the Clinic's action to the Brampton trial list.
 However, we vary the
costs award below to $3,000, payable by the appellants to the
respondent. It was the appellants' delay in fulfilling their
undertakings that caused the problem and that delay was completely
within the appellants' control to cure.
 There will be no
costs of this appeal.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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