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Appeals - Fresh Evidence

Appeals - Grounds - Fact-finding Error

Civil Procedure - Pleadings

Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation (Ont CA, 2016)

A couple of useful practice comments were made by the Court of Appeal in this case:
“Fresh” evidence may be admissible on appeal to demonstrate prejudice caused to the appellant by an error made in the proceedings under review: see Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269 (CanLII), at para. 84.

.....

[62] A judgment based on a claim not made or a theory not advanced and argued cannot stand. The fairness and reliability of the adversarial process demand that each side have notice of the other’s claims and a full opportunity to respond to those claims: see Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P. (2011), 2011 ONCA 511 (CanLII), 106 O.R. (3d) 677 (C.A.), at para. 6; Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 58-62.
And as well, the court re-stated the standard of 'palpable and overriding error' under which a trial level fact-finding will be re-examined on appeal:
[70] A court of appeal will interfere with the findings of fact of a trial judge only if a finding is shown to be the product of “palpable and overriding error”. A factual finding unsupported by any evidence is inevitably a “palpable” error. That error will also be “overriding” if it is shown to have affected the result: H.L. v. Canada (Attorney General), 2005 SCC 25 (CanLII), [2005] 1 S.C.R. 401, at paras. 53-56; Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 44 B.L.R. (3d) 165 (Ont. C.A.), at paras. 292-96, 335, leave to appeal refused, [2004] S.C.C.A. No. 291.
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