Nordheimer J. (as he then was) held in Walsh v. 1124660 Ontario Ltd., [2004] O.J. 2246 (S.C.), that a party cannot seek to file new evidence when the court does not accept the existing evidence at the hearing (at paras. 13-14): When I put this point to counsel for the plaintiffs, he responded by asking for an adjournment of the motion in order to file affidavits from the plaintiffs while at the same time asserting that the existing affidavit was adequate to respond to the motion. Counsel reconciled these apparently inconsistent positions by saying that while he felt that the existing affidavit established a genuine issue for trial, if the court felt otherwise then an adjournment should be granted to file further evidence. In the normal case, I would grant the adjournment request but I have concluded that it is not appropriate to do so in this case for a number of reasons. First, this is not a case of inadvertence or of the sudden appearance of a new fact or other change in circumstances. Rather, the request is made solely as a consequence of an unfavourable response from the court. Courts should not encourage or permit litigation to be undertaken on a trial and error basis.
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