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Appeals - Fresh Evidence (2). McLeod v. Wigwamen Incorporated
In McLeod v. Wigwamen Incorporated (Div Court, 2023) the Divisional Court allowed a fresh evidence motion, here where the issue was 'illegality' as an RTA ground of eviction, and the evidence that of a criminal trial transcript:Preliminary Issue: Should the transcript from the criminal proceeding be admitted into evidence?
[9] As a preliminary issue, I address the admissibility of the transcript from the criminal proceeding. Mr. McLeod seeks to have the transcript of reasons admitted into evidence.
[10] To admit fresh evidence on an appeal, the test in Palmer v. the Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 must be satisfied: Schram v. Thompson, 2022 ONSC 6922.
[11] I have decided to admit the transcript. The issue in dispute is whether the second element of the test, that the evidence be relevant such that it bears on a decisive or potentially decisive issue, is met. The landlord submits it should not be admitted since this court only has jurisdiction over questions of law and the transcript is relevant only to factual findings regarding the alleged illegal acts.
[12] There are limited circumstances in which an error with respect to factual findings can amount to an error of law. These include where an adjudicator ignored items of evidence that the law required them to consider and where the adjudicator committed an error of law or legal principle during the fact-finding exercise. It is also an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference: Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507; aff’d 2022 ONCA 446, leave to appeal granted 2023 CanLII 17178 (SCC), at para. 28.
[13] In this case, if the court were to find an error of law with respect to the finding that Mr. McLeod committed illegal acts, that error could be decisive of the appeal. The transcript is admitted so I can determine if any error of law arose in the Board’s assessment of the alleged illegal acts. . His Majesty the King in right of Ontario v. Dell
In His Majesty the King in right of Ontario v. Dell (Div Court, 2023) the Divisional Court considered (and dismissed) a fresh evidence issue:[26] The test for receiving fresh evidence is set out in R. v. Palmer, [1980] 1. S.C.R. 759 and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208, 1994 CanLII 8711 (C.A.). It is readily apparent that the affidavits would not meet the test for fresh evidence, even if a proper motion has been brought. They are largely evidence about the factual history of the merits of the claim, from the standpoint of certain witnesses, as well as inadmissible argument. I am not persuaded that this evidence is relevant to the appeal. With respect to the transcript excerpts, they are attempted cross-examination about the purpose of the Act based on public documents and do not give rise to admissible evidence. Further, even if all the affidavit and cross-examination evidence was admitted, it would not be conclusive of an issue on this appeal. . ABDOU v. Governing Council of UOT
In ABDOU v. Governing Council of UOT (Div Court, 2023) the Divisional Court considered basic 'fresh evidence' on appeal law:[33] In order to adduce new evidence on this appeal (relating to events occurring after the trial), or fresh evidence on this appeal (relating to events occurring prior to trial but that were not part of the trial), Mr. Abdou must be able to show that (a) the evidence could not, by the exercise of due diligence, have been obtained for the trial; (b) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (c) the evidence is credible in the sense that it is reasonably capable of belief; and (d) the evidence is such that, if believed, it could have affected the result at trial: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775; Barendregt v. Grebliunas, 2022 SCC 22, at para. 55. . Tewari v. McIntyre
In Tewari v. McIntyre (Ont CA, 2023) the Court of Appeal briefly cites leading cases on fresh evidence:[7] The Supreme Court of Canada has made clear that appellate courts are rarely to admit fresh evidence:Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at 775; Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 31. . Manulife v. Municipal Property Assessment Corporation et al
In Manulife v. Municipal Property Assessment Corporation et al (Div Court, 2023) the Divisional Court cites law that there is no jurisdiction on a leave to appeal motion to admit fresh evidence:[9] It appears that there is no jurisdiction to admit fresh evidence on a motion for leave to appeal to the Divisional Court: see SLMsoft.com Inc. v. Rampart Securities (Trustee of) (2005), 2005 CanLII 41549 (ON SCDC), 78 O.R. (3d) 521 (Div. Ct.), at paras. 16-39.
[10] Regardless, I would decline to do so because I find that the four-part test for admission of fresh evidence as set out in Palmer v. The Queen has not been met: 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. While I accept that the evidence could not have been obtained previously by the exercise of due diligence and that the evidence is credible, I am not convinced that the evidence is relevant or would have impacted the decision of the Board. The motion to admit fresh evidence is dismissed. . Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al.
In Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al. (Fed CA, 2023) the Federal Court of Appeal considers an appeal from an unusual multi-party AITA statutory de novo 'review' [under s.44(1)] (neither an appeal nor a JR) at the Federal Court. In this quote, the court considers how the normal appellate/JR 'fresh evidence' rules apply in this unusual de novo context:B. Should the Court receive the new evidence on appeal tendered by the Families?
[40] In the course of the hearing of this appeal, the Families argued that this Court should receive as new evidence the AIA request made by the Baylis/Leone families and the Toronto Police Association for Clinton Gayle’s Corrections Canada and Parole Board records. The center-piece of that evidence is described in paragraph 14 of the Families’ notice of motion:The strongest example of this is the evidence that was before Justice Nordheimer at Clinton Gayle’s early release hearing pursuant to s. 745.61 of the Criminal Code. Significant evidence from Gayle’s institutional records containing so-called “highly sensitive” materials were part of the public record on that application and therefore not impressed with any privacy interest. When the Baylis/Leone families requested the same materials as part of their ATIP request, these same public documents became impressed with the offender’s privacy interest, an interest that [Parole Board] and the [Office of the Information Commissioner] held outweighed the public interest. [41] The “new” evidence was included in the Appeal Book but the Federal Court ruled that it would not consider it, relying on the principle that on judicial review, the Court will only consider the material that was before the decision-maker, subject to certain exceptions. The Families argued that the evidence fell within the exception for information that provided context for the decision under review, by illustrating the context within which their requests for the Withheld Information had been decided.
[42] Ground 20 of the Families’ notice of appeal provides that:The learned applications court judge erred in disregarding the evidentiary record concerning Clinton Gayle, when this evidence was highly relevant to the constitutional issues, statutory interpretation and contextual considerations. [43] As a result, the Families seek to have this Court accept as new evidence, material that is already in the Appeal Book and that the Federal Court refused to consider. Since the issue is raised in the notice of appeal, the notice of motion seeking to introduce this material as new evidence is redundant. The material is already in the record and has been ruled on by the Federal Court. In effect, the Families are arguing that the Federal Court erred in law in refusing to consider this evidence.
[44] In fact, the Federal Court erred by applying the wrong test to the reception of this material since its role, as provided by section 44.1 of the AIA, was to conduct a de novo review. Given that the issue in that review was the refusal to disclose the Withheld Information, the fate of a different application was simply irrelevant to the Federal Court’s task. Whether the Withheld Information contained personal information and whether their disclosure was justified or not has nothing to do with the disclosure of other documents in other files. As a result, the Families’ motion to introduce new evidence should be dismissed and ground 20 of the notice of appeal should also be dismissed. . Sparkman v Sparkman
In Sparkman v Sparkman (Div Court, 2023) the Divisional Court considered a recent SCC case on fresh evidence:[3] The motion for new evidence is dismissed. New evidence on an appeal is admissible if it meets the four criteria set out in Barendregt v. Grebliunas, 2022 SCC 22:i. the evidence could not, by the exercise of due diligence, have been obtained for the trial, or the motion as the case may be;
ii. the evidence is relevant in that it bears upon a decisive or potentially decisive issue;
iii. the evidence is credible in the sense that it is reasonably capable of belief; and
iv. the evidence is such that, if believed, it could have affected the result at trial or on the motion. . Bhatnagar v. Cresco Labs Inc.
In Bhatnagar v. Cresco Labs Inc. (Ont CA, 2023) the Court of Appeal considered the calculation of damages in an 'honest performance' contract case. In this quote the appellant sought to have fresh evidence admitted, here on a 'cogency' or 'narrative' basis and considering the leading fresh evidence case of Barendregt v Grebliunas (SCC, 2022):[30] Cresco submits that the fresh evidence meets the criteria for admission established in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. Cresco says that the fresh evidence demonstrates that, while Origin House may not have advised the Appellants directly of the delayed closing date, both it and Origin House repeatedly communicated that information to the market through press releases and other documents. All of the documents were publicly available on the System for Electronic Document Analysis and Retrieval (“SEDAR”).
[31] Relying on this court’s decision in Katokakis v. William R. Waters Ltd. (2005), 2005 CanLII 4090 (ON CA), 194 O.A.C. 353 (C.A.), Cresco argues, in the alternative, that the fresh evidence should be admitted because it is necessary to provide this court with the full picture of the background and commercial realities regarding Origin House and Cresco’s public disclosure of the delayed closing date.
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[34] In Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, the Supreme Court firmly and clearly settled the legal principles governing an appellate court’s power to admit additional evidence to supplement the record in civil appeals. Regardless of whether the evidence relates to facts that occurred before the trial (“fresh evidence”) or after trial (“new evidence”)[2], the Palmer test governs the admission of additional evidence on appeal adduced for the purpose of reviewing the decision below: Barendregt, at para. 27. Appellate courts are to apply the Palmer criteria to determine whether finality and order in the administration of justice must yield in service of a just outcome. The overarching consideration is the interests of justice, regardless of when the evidence, or fact, came into existence: Barendregt, at para. 3.
[35] In my view, the fresh evidence does not satisfy the first of the Palmer criteria. For that reason, I would dismiss the motion and refuse to admit the fresh evidence.
[36] The Palmer criteria dictate that additional evidence:1. should generally not be admitted if, by due diligence, it could have been adduced at trial;
2. must be relevant, in the sense that it bears on 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. if believed and when taken with the other evidence adduced at trial, could reasonably be expected to have affected the result. [37] The fresh evidence in this case fails on the first criterion. It was available at the time of the Application and there is no suggestion that it could not have been obtained by the exercise of due diligence. Cresco says that the Application was originally framed as a dispute over the interpretation of the earnout provision in the SPA. It claims that it was only in their Application factum that the Appellants alleged that Origin House breached its duty of good faith in various ways, including by failing to inform them in October 2019 that the Cresco Transaction was going to close in 2020.
[38] On my review of the record, including the affidavits and cross‑examinations of affiants for both parties, it appears the question of good faith was in play in the proceedings well before the Appellants served their factum on the Application. However, even if it was not, there could have been no doubt about the centrality of that allegation when Cresco received the Appellants’ factum. Had Cresco wished to introduce the fresh evidence, it should have taken the necessary steps to introduce that evidence at the Application. It did not do that.
[39] The admission of fresh evidence on civil appeals will be rare: Barendregt, at para. 31. In my view, in this case, the interests of justice are best served by reference to the foundational principle of finality and order. The fresh evidence was readily available before the Application was heard. It was clearly relevant to the question of when the Appellants became aware that the Cresco Transaction would close in 2020, rather than 2019. Had it been introduced below, the Appellants would have had the opportunity to respond and the application judge could have made the necessary findings. To admit the fresh evidence on appeal would undermine the finality principle and give rise to unfairness.
[40] Further, I do not accept Cresco’s argument, based on Katokakis, that the fresh evidence is necessary to provide this court with the full picture of the background and commercial realities regarding Origin House and Cresco’s public disclosure of the delayed closing date.
[41] It is not clear to me that Katokakis is good law, following Barendregt, for two reasons. First, there is nothing in Barendregt to suggest that additional evidence should be admitted by an appellate court so it has a full picture of the background and commercial realities of a matter. Second, this court stated in Katokakis, at para. 5, that the fresh evidence had little relevance to the issues the court had to decide. The reasoning in Barendregt and, particularly, the second of the Palmer criteria, do not appear consonant with the admission of additional evidence that has little relevance to the issues to be decided. . R. v. Bharwani
In R. v. Bharwani (Ont CA, 2023) the Court of Appeal considered a limitation on fresh evidence for 'me too' or repair evidence:[250] Respectfully, the fresh evidence really constitutes more of the same and begs all kinds of concerns over the finality of verdicts. The following passage from R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, at para. 109, is apt:Even assuming that the report would be admissible as expert opinion evidence, the fresh evidence application should still fail. In general, fresh evidence on appeal is not meant to provide an opportunity to tender concurring expert opinions on issues canvassed at trial, nor is it a platform for offering expert reports to repair defects in expert evidence adduced at trial. As this court said in R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 411-412, fresh evidence will not be admitted merely to add a "third voice" to the issues canvassed at trial. See also R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.), at para. 71, leave to appeal refused: [2002] S.C.C.A. No. 156; and R. v. Phillion, 2009 ONCA 202, 241 C.C.C. (3d) 193, at para. 233. . R. v. Wong
In R. v. Wong (Ont CA, 2023) the Court of Appeal considers the 'adequate record' element of a fresh law on appeal exception:[71] The general rule is that it is not appropriate to raise an issue for the first time on appeal: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-40. As held in Reid, at para. 43, in order to avoid the application of this general rule, Mr. Wong would have to satisfy the court that, amongst other matters, the evidentiary record is sufficient to allow this court to address the issue of bias “fully, effectively and fairly”. In this case, given that Detective Backus was not asked any questions going to the issue of his potential bias, including his ability to keep an open mind, the court does not have a proper evidentiary record to decide the issue. Therefore, on this basis alone, I would dismiss this ground of appeal. . Lukács v. Canada (Citizenship and Immigration)
In Lukács v. Canada (Citizenship and Immigration) (Fed CA, 2023) the Federal Court of Appeal considered the doctrine of fresh law and the Charter:[73] The jurisprudence is clear that, absent special circumstances, appellate courts will not consider Charter arguments which are made for the first time on appeal: see MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357 at p. 361, Guindon v. Canada, 2015 SCC 41 (CanLII), [2015] 3 S.C.R. 3 at para. 19. This is so for a number of reasons. The first is that a Charter argument can only be made on a proper evidentiary foundation, which generally will not be the case if a matter is raised for the first time on appeal: Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016 at para. 25, Coote v. Lawyers’ Professional Indemnity Company (Lawpro), 2014 FCA 98, [2014] 459 N.R. 174 at para. 8, Canada (Public Safety and Emergency Preparedness) v. J.P., 2013 FCA 262, [2014] 4 F.C.R. 371 at para. 101. A corollary of this proposition is that when a Charter argument is raised for the first time on appeal, the Crown is deprived of the opportunity to lead evidence of justification pursuant to section 1 of the Charter: Lougheed v. Canada, 2013 FCA 138 at para. 20.
[74] A further reason for an appellate court to decline to hear a Charter argument which is made for the first time on appeal is that the Court will be deprived of the benefit of the trial judge’s (or tribunal’s) reasoning and analysis of the arguments: Harkat v. Canada (Citizenship and Immigration), 2012 FCA 122, [2012] 3 F.C.R. 635 at para. 148. . R. v. O.F.
In R. v. O.F. (Ont CA, 2022) the Court of Appeal considered the CCC provision [s.683] that addresses fresh evidence on criminal appeals:[31] The admission of fresh evidence on appeal is governed by s. 683 of the Criminal Code. This court may admit evidence that was not adduced at trial if the following criteria are met:. The evidence is admissible under the operative rules of evidence [admissibility].
. The evidence is sufficiently cogent in that it could reasonably be expected to have affected the verdict [cogency].
. If the first two criteria are met, is there an explanation offered for the failure to adduce the evidence at trial and does that explanation affect the admissibility of the evidence? [due diligence]: see Re Truscott, 2007 ONCA 575, 225 CCC (3d) 321, at para. 92. . R. v. McDonald
In R. v. McDonald (Ont CA, 2022) the Court of Appeal cites an exception to the Palmer fresh evidence test:[43] As Doherty J.A. explained in R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), at pp. 169-70, the test articulated in R v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, does not necessarily apply where fresh evidence is offered for a different purpose such as a challenge based on ineffective assistance of counsel. A full and fair assessment of an appellant’s claim in such circumstances requires evidence. Thus, “[w]here an appellant contends that trial counsel’s conduct resulted in a miscarriage of justice, the interests of justice will generally require that this court receive otherwise admissible evidence relevant to that claim.” . Hirtle v. College of Nurses of Ontario
In Hirtle v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court considered a motion for fresh evidence in the context of a procedural fairness argument:[36] The College moves to adduce evidence on this appeal as a result of the appellant’s position that the Panel erred in providing him with inadequate assistance as a self-represented party. The proposed further evidence relates to the steps taken by the Discipline Committee and others at the College to provide the appellant with procedural assistance. Specifically, the College puts forward evidence regarding steps that were taken before and during the hearing that do not form part of the appeal record.
[37] Under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. E-19, the court may receive further evidence on an appeal to enable the court to determine the appeal.
[38] The court will permit evidence supplementing the appeal record where it relates to an issue in the appeal regarding procedural fairness: Moynes v. Public Accountants Council (Ontario), [2001] O.J. No. 2735 (Div. Ct.), at para. 13; 1117387 Ontario Inc. v. National Trust Co., 2010 ONCA 340, 262 O.A.C. 118, at paras. 40-41; Leader Media Productions Ltd. v. Sentinel Hill Alliance Atlantis Equicap Ltd. Partnership, 2008 ONCA 463, 90 O.R. (3d) 561, at paras. 42-44; R. v. Leno, 2021 BCCA 200, at paras. 8, 27-29, 68-69. . Lash v. Lash Point Association Corp.
In Lash v. Lash Point Association Corp. (Ont CA, 2022) the Court of Appeal considered the test for fresh evidence:[30] An appellate court may exercise its discretion to admit fresh evidence 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), 17 O.R. (3d) 208 (C.A.). Where, however, the evidence did not exist at the time of trial, the evidence will only be admitted where it is necessary to deal fairly with the issues on appeal and where to decline to admit it would lead to a substantial injustice in result: Sengmueller, at p. 23. . R. v. I.W.
In R. v. I.W. (Ont CA, 2022) the Court of Appeal considered an issue of fresh evidence in a criminal case:[62] When determining whether to admit fresh evidence on appeal, the court must consider whether the “interests of justice” warrant reception, based on these questions from Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775:i.) By due diligence, could the evidence have been adduced at trial?
ii.) Is the evidence relevant in the sense that it bears on a decisive or potentially decisive issue?
iii.) Is the evidence credible in the sense that it is reasonably capable of belief?
iv.) Is the evidence such that, if believed, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result? [63] The Palmer criteria encompass three components: admissibility, cogency, and due diligence: Truscott (Re), 2007 ONCA 575, 83 O.R. (3d) 272, at para. 93. The due diligence component becomes important if the admissibility and cogency components are met: Truscott (Re), at para. 93. Although the absence of an adequate explanation for not producing material at trial will not necessarily lead to the exclusion of the evidence on appeal, the finality of trial verdicts would be rendered illusory and the integrity of the trial process undermined if evidence is routinely admitted on appeal that could have been adduced at trial: Truscott (Re), at paras. 101-102.
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