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Appeals - Fresh Evidence

. Nicole L. Tiessen Interior Design LTD. v. Canada

In Nicole L. Tiessen Interior Design LTD. v. Canada (Fed CA, 2022) the Federal Court of Appeal held that admitting fresh law would be prejudicial to the other side:
[24] The general legal principles to be applied in determining whether a court should consider a new issue is set out in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 at paras. 51-52:
51 In any event, the Court of Appeal erred in refusing to consider the appellant’s arguments on the grounds they were not raised at trial. The general rule is that an appellant may not raise a point that was not pleaded, or argued in the trial court, unless all the relevant evidence is in the record: John Sopinka and Mark A. Gelowitz, The Conduct of an Appeal (1993), at p. 51. In this case, all relevant evidence was part of the record. In fact, all the requisite findings of fact had been made. The point raised by the appellant was purely a question of law.

52 Most importantly, the respondents did not suffer prejudice, since they would not have proceeded any differently even if the appellant had expressly relied on McGhee v. National Coal Board and Bonnington Castings, Ltd. v. Wardlaw, supra, from the very beginning. The defence theory was that the disc herniation was not causally related in any way to the injuries suffered in the motor vehicle accidents. The respondents could not have made any more emphatic defence than this. This was a case where “had the question been raised at the proper time, no further light could have been thrown upon it”: Lamb v. Kincaid (1907), 1907 CanLII 38 (SCC), 38 S.C.R. 516, at p. 539, per Duff J. (as he then was). Given that the appellant’s arguments raised an issue of law which did not require any further evidence (or indeed any further findings of fact) and which would not have caused any prejudice to the respondents, it was an error for the Court of Appeal to refuse to consider the argument.

(See also Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712 at paras. 36-39.)
. Bent v. Platnick

In Bent v. Platnick (SCC, 2020) the Supreme Court of Canada revisits and confirms the fresh evidence test from Palmer v The Queen (SCC, 1979):
[50] For fresh evidence to be admitted, the Palmer test requires consideration of the following four factors:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . . .

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [p. 775]
[51] In Pointes Protection, this Court expressly contemplates the “potentiality of future evidence arising”: para. 37. This is based on the expedited nature of s. 137.1 motions, which are required to be heard in a statutorily imposed short time frame. That is exemplified in this case, where Dr. Platnick had to submit his evidentiary record within 25 days after the notice of motion was filed. In this sense, as recognized in Pointes Protection, s. 137.1 motions are unlike summary judgment motions, where parties are expected to put their best foot forward; in other words, on a s. 137.1 motion, it is acknowledged that parties are under a mandated time constraint and are consequently limited in the evidentiary record they can put forward.

[52] This does not, however, give parties carte blanche to file motions to adduce fresh evidence. Palmer must be adhered to, and for this reason, as I note below, I would not admit all of the fresh evidence. It is important to note here, however, that this case is a transitional one: the considerable uncertainty surrounding s. 137.1 motions — due to a lack of judicial guidance with respect to both the test for withstanding a s. 137.1 motion, as well as the nature or comprehensiveness of the evidence required on a such a motion — militates in favour of granting this particular motion to adduce fresh evidence in part.
. Krizans v. Skurdelis

In Krizans v. Skurdelis (Div Ct, 2020) the Divisional Court succinctly stated the well-established test for fresh evidence on appeal:
[34] The test to admit fresh evidence on appeal is well settled. The Krizans must establish the evidence could not have been obtained by reasonable diligence in their application; is credible; and if admitted, would likely be conclusive of an issue on appeal: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 13; St Amand v. Tisi, 2018 ONCA 106 at para. 8.
. Krieser v. Garber

In Krieser v. Garber (Ont CA, 2020) the Court of Appeal explained that CJA 134(4) gives the court authority to admit fresh evidence on appeal:
[51] Section 134(4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 gives this court discretion to receive further evidence on appeal “in a proper case”. Normally, the court will exercise its discretion to receive further evidence on appeal when (1) the tendered evidence is credible; (2) it could not have been obtained by the exercise of reasonable diligence prior to trial; and (3) the evidence, if admitted, will likely be conclusive of an issue in the appeal: Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 111 D.L.R. (4th) 19 (Ont. C.A.), at p. 23.
. Heliotrope Investment Corporation v. 1324789 Ontario Inc.

In Heliotrope Investment Corporation v. 1324789 Ontario Inc. (Ont CA, 2021) the Court of Appeal considered the test for fresh evidence:
[20] Before turning to the issues, I address the Beach parties’ fresh evidence motion. The test for admitting fresh evidence is well established. The party seeking to introduce it must show that the proposed evidence is credible, could not have been obtained by reasonable diligence before trial or application, and if admitted, would likely be conclusive of an issue in the appeal. The admission of the fresh evidence must be in the interests of justice: St. Amand v. Tisi, 2018 ONCA 106, 89 R.P.R. (5th) 1, at para. 8.
. Johnson v. Rajanna

In Johnson v. Rajanna (Ont CA, 2021) the Court of Appeal considered the established test for admitting fresh evidence:
[13] R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, established the test for the admission of fresh evidence on appeal:
1. The evidence should not be admitted if, by due diligence, it could have been adduced at trial, but this general principal will not be applied as strictly in criminal cases as in civil cases;

2. The evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue;

3. The evidence must be credible in the sense that it is reasonably capable of belief; and

4. The evidence must be such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
. R v C.F.

In R v C.F. (Ont CA, 2017) the Court of Appeal succinctly restates the legal test for the admission of fresh evidence in an appeal:
[53] The test for the admission of fresh evidence from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775 is well known. Fresh evidence:

1. should generally not be admitted if, by due diligence, it could have been adduced at trial;

2. must be relevant, in that it bears upon a decisive or potentially decisive issue in the trial;

3. must be credible, in the sense that it is reasonably capable of belief; and

4. must be such that if believed, and when taken with the other evidence at trial, it could reasonably be expected to have affected the result.
. Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation

In Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation (Ont CA, 2016) the Court of Appeal endorsed 'fresh evidence' to prove procedural events below:
[59] .... “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.
. Gill v. College of Physicians and Surgeons of Ontario

In Gill v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court considered the test for fresh evidence on an appeal:
[47] It is only in exceptional cases that the Court admits fresh evidence on appeal with respect to issues litigated at first instance. The Supreme Court of Canada in R. v. Palmer and Palmer, 1980 CanLII 175 (SCC), [1980] 1 SCR 758(CanLII); R. v. Litt 2021 ONCA (CanLII) at para. 28) has set out the factors to be considered in applications such as this one:
(i) Admissibility: is the evidence admissible under the operative rules of evidence?

(ii) Cogency: is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict (in this case, the outcome on the motion to re-open)?; and

(iii) Due diligence: what is the explanation offered for the failure to adduce the evidence, and should that explanation affect the admissibility of the evidence?
[48] Further, the Court must consider whether the decision not to lead evidence at first instance was a tactical choice. The Court of Appeal has noted that “[f]resh evidence applications cannot be made the means whereby appellate counsel seek to undo reasonable tactical decisions made at trial so as to secure a new trial, where that different tack may or may not be pursued by the defence.” (R. v. Kelly, 1999 CanLII 1068 (Ont. C.A.), at para. 224).



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