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Appeals - Fresh Evidence (3). Zwaan v. LaFramboise
In Zwaan v. LaFramboise (Ont CA, 2024) the Ontario Court of Appeal considered the test for a fresh evidence issue:The fresh evidence motion
[15] With respect to fresh evidence, the party seeking to introduce the fresh evidence must show that the proposed evidence is: (1) credible; (2) could not have been obtained by reasonable diligence before trial or application; and (3) if admitted, would likely be conclusive of an issue in the appeal. The overriding factor is that fresh evidence will be admitted only where it is in the interests of justice to do so: St. Amand v. Tisi, 2018 ONCA 106, 89 R.P.R. (5th) 1, at para. 8. . Verbakel v. Prokopiv
In Verbakel v. Prokopiv (Div Court, 2024) the Divisional Court allowed an RTA s.210 appeal, here on fairness grounds where the appellant "shared with others", and an adjournment scheduling "to a date upon which her legal representative (not counsel on appeal) could attend" was denied. As a consequence, the "hearing proceeded without the Appellant having legal representation".
Here the court considered a fresh evidence exception for "evidence going to the validity of the trial process itself":[31] Whether fresh evidence should be permitted on appeal is assessed using the framework set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 as affirmed in Barendregt v. Grebliunas, 2022 SCC 22, at para. 34.
[32] In Barendregt, at para. 30, the Court noted that Palmer does not apply to evidence going to the validity of the trial process itself.
[33] The proposed fresh evidence affects the findings of the Board about when the Appellant received notice of the hearing and the prejudice suffered by the parties. It undercuts the Board’s finding that the Appellant received notice of the hearing on March 31, 2023 as the Appellant deposes that she learned of the hearing only in the first week of May, 2023. In my view, the proper approach in this case is the Palmer framework.
[34] I accept that the new evidence is relevant to the question of whether the adjournment request and the hearing proceeded in a manner that was procedurally fair. It sets out from the Appellant’s perspective the facts upon which she was unable to meaningfully participate including that the Respondent had served an amended L2 form with new evidence on May 25, 2023.
[35] In the proposed fresh evidence, the Appellant details that she did not always receive her mail between February and April 2023 and that the landlord had insisted that he and his family share her mailbox even though he did not reside at the property. This prompted her to complain to Canada Post and Canada Post ultimately provided her with a mailbox to which only she had the key. It was only after this occurred, that in May 2023, that she found the Notice of Hearing mailed by the Board on March 31, 2023.
[36] The proposed fresh evidence also sets out that the Appellant has anxiety as the result of being involved in past legal processes and for this reason she was concerned that she should not say anything without counsel.
[37] Under the Palmer framework, fresh evidence should not generally be admitted if by due diligence it could have been adduced at the hearing. In my view, the nature of the evidence is such that it could not be admitted with due diligence because it relates to when the Appellant received actual notice.
[38] This evidence is relevant to the issue of notice, it is reasonably capable of belief, and had the potential to have affected the result.
[39] For this reason, I find that the fresh evidence is admissible under the Palmer framework. However, in the end, I do not rely on it as the transcript of the hearing allows me to decide the issue of procedural fairness without resort to the fresh evidence. . Tan v. Yu
In Tan v. Yu (Div Court, 2024) the Divisional Court states the Palmer test for admitting fresh evidence on an appeal:[27] In the present case, it is clear that the Appellant is seeking a new trial with an enormous quantity of fresh evidence. None of this fresh evidence would be admissible in the Divisional Court unless the Appellant met the very strict test for the admission of fresh evidence in a civil appeal set out by the Supreme Court of Canada in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. A party seeking to adduce fresh evidence in a civil appeal must show that:a. The proposed evidence is credible, in that it is reasonably capable of belief;
b. The proposed evidence is relevant to a decisive or potentially decisive issue in the trial;
c. The proposed evidence could not have been, through due diligence, adduced at trial; and,
d. If admitted and believed, the proposed evidence could have been expected to have affected the result at trial. See also: Schram v. Thompson, 2022 ONSC 6922, at para. 19. . Turner v. Dong
In Turner v. Dong (Div Court, 2024) the Divisional Court dismissed a fresh evidence motion in an RTA s.210 appeal by a self-presenting appellant:[25] The Tenant has sworn an affidavit explaining that when she appeared before the LTB she was self-represented, and was “not aware of the importance of the Lease Agreements, photographs of the various residential units…and other fresh evidence to this matter, and had therefore not submitted it”.
[26] This Court may admit fresh evidence in a civil appeal under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Under the traditional test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, reaffirmed in Barendregt v. Grebliunas, 2022 SCC 22, at paras. 27 and 34, a party seeking to adduce fresh evidence in a civil appeal must show that:a. The proposed evidence is credible, in that it is reasonably capable of belief;
b. The proposed evidence is relevant to a decisive or potentially decisive issue in the trial;
c. The proposed evidence could not have been, through due diligence, adduced at trial; and,
d. If admitted and believed, the proposed evidence could have been expected to have affected the result at trial. See also: Schram v. Thompson, 2022 ONSC 6922, at para. 19.
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[28] The requirement for “due diligence” is the same whether a litigant is represented by counsel or self-represented. Being self-represented is not a ground for admitting fresh evidence on appeal.
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[30] Second, the proposed fresh evidence is not relevant to the issues on this appeal. The number of units in a building is a question of fact, or, at best, a mixed question of fact and law. As the Divisional Court stated in Kurdina v. Toronto Community Housing Corporation, 2021 ONSC 544, at para. 9:With this evidence, the appellant seeks to challenge findings of fact made by the Board. However, an appeal lies to this Court only on a question of law. None of this evidence can assist this Court in determining whether there has been an error of law in the initial decision. . James Estate (Re)
In James Estate (Re) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from the dismissal of "his application for a certificate of appointment as estate trustee with a will".
Here the court considers a motion for fresh evidence:Motion to Adduce Fresh Evidence
[18] The appellant seeks to introduce fresh evidence on the appeal, in the form of an affidavit sworn by the appellant on June 25, 2024. I would dismiss this motion.
[19] This court may admit fresh evidence in a civil appeal under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Under the traditional test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, reaffirmed in Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at paras. 27 and 34, a party seeking to adduce fresh evidence in a civil appeal must show that:a. The proposed evidence is credible, in that it is reasonably capable of belief;
b. The proposed evidence is relevant to a decisive or potentially decisive issue in the trial;
c. The proposed evidence could not have been, through due diligence, adduced at trial; and,
d. If admitted and believed, the proposed evidence could have been expected to have affected the result at trial. [20] This court has adopted a more streamlined three-part test in cases such as Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at para. 9; St. Amand v. Tisi, 2018 ONCA 106, 89 R.P.R. (5th) 1, at para. 8; and Shannon v. Hrabovsky, 2024 ONCA 120, at para. 27. As noted in Re Chiang, 2009 ONCA 3, 93 O.R. (3d) 483, at para. 77, although the two tests are similar, the more streamlined test arguably imposes a greater onus on the moving party to show that the evidence would have affected the result at trial.
[21] The fresh evidence proposed by the appellant does not meet either formulation of the test.
[22] Much of the appellant’s June 2024 affidavit consists of evidence that he could have adduced in response to the application judge’s September Direction. He states that he has been granted certificates of appointment with a will for two estates, one in 2017 and the other in 2019, and that no complaints have been made about his administration. He describes his relationship with Mr. James over the years and the circumstances giving rise to his application. All this evidence was obviously in the appellant’s possession in September 2023. As he himself acknowledges in the affidavit, he made a conscious decision not to tender any evidence in response to the application judge’s September Direction.
[23] The appellant points out that the due diligence requirement is not rigid; it should be considered in the practical context of the case, and relaxed where appropriate: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 60. He argues that the requirement should not be stringently applied here, because the application judge did not indicate exactly what kind of evidence should be filed in response to his September Direction and gave the appellant and beneficiaries only 28 days to respond.
[24] The context of this motion does not, in my view, militate for a relaxation of the due diligence requirement. The application judge’s concern about the appellant’s qualification to act as an estate trustee was clearly laid out in his September Direction. He was concerned that the appellant had been engaged in the unlicensed practice of law and he explained the basis for his concern. The application judge was not required to foresee or spell out exactly what kind of evidence the appellant or other interested parties might advance to address that concern. . R. v. Prasad
In R. v. Prasad (Ont CA, 2024) the Ontario Court of Appeal dismissed appellant motions to admit the fresh evidence and his motion to reopen the appeal.
Here the court sets out and applies "principles governing the reception of fresh evidence on appeal":[85] The governing Palmer test for the admission of fresh evidence on appeal requires Mr. Prasad to establish that the evidence is admissible as ordinary evidence, that it is cogent, and that the party applying exercised due diligence.[18] In Truscott (re),[19] at para. 69, this court gave some additional form to Palmer’s cogency criterion by separating out relevance, credibility, and probative value for analytical purposes. I have already addressed the first inquiry – whether the evidence is admissible as ordinary evidence – and concluded it is not. I now address cogency and due diligence.
[86] Cogency is a qualitative analysis; it assesses the probative potential of the proposed fresh evidence in the context of all the trial evidence and whether it would have had the potential to change the trial result: Truscott, at para. 100. To repeat my view, the expert evidence is not cogent. It does not specify any actual errors in the transcription of the audio.
[87] Due diligence stipulates that the fresh evidence should not be admitted if it could have been adduced at trial, though this criterion will not be applied as strictly in a criminal case where its strict application might lead to a miscarriage of justice: Palmer, at para. 23.
[88] Mr. Prasad could have proffered what is now the fresh evidence at the trial. The intelligibility of the audio was a key issue at the trial. But defence counsel at trial (not appeal counsel) swears that he was unaware of the science on “the issues of the inaudibility of the audios and the neuroscience or neuropsychology regarding audio perception or on the effect of being primed with knowledge of the nature of the case and related listener bias issues.” He adds that the failure to adduce the evidence “was not a tactical decision on my part.” I would not dispute the good faith of defence counsel at trial, but the appeal then runs squarely into Charron J.A.’s words (as she then was) in R. v. Rhingo,[20] at p. 214: “The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal.”
[89] Even though due diligence is a criterion that should not be applied as strictly in a criminal case where its strict application might lead to a miscarriage of justice, it remains a factor: Palmer, at para. 23, R. v. Hay,[21] at para. 64; R. v. Manasseri,[22] at paras. 206, 219-222, R. v. Smithen-Davis (2020),[23] per Watt J.A., at para 60.
[90] I would find that the fresh evidence does not meet the Palmer criteria for admission on appeal. . R. v. Ruthowsky
In R. v. Ruthowsky (Ont CA, 2024) the Ontario Court of Appeal allowed a fresh evidence application, here where the evidence was directed at a fairness issue:[60] However, some of the proposed fresh evidence is relevant to other grounds of appeal and the Crown does not contest its admissibility. In particular, the Crown does not oppose the admissibility of the affidavit of a legal assistant at the firm of counsel for the appellant, Rachelle Bennett. Ms. Bennett’s affidavit relates to the late disclosure of two sets of notes of the lead investigator. The Crown also does not oppose the admission of extracts of the audio recordings of the trial.
[61] I would admit the affidavit of Ms. Bennett and the audio recording extracts. Ms. Bennett’s affidavit is relevant to the disclosure ground of appeal. The appellant relies on some of the audio recording extracts in his sentence appeal. These portions of the fresh evidence are admissible for their relevance to assessing the fairness of the trial process, pursuant to the principles enunciated in R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.). I discuss these aspects of the fresh evidence further in the analysis of the ground of appeal relating to disclosure and the sentence appeal. . R. v. Hason
In R. v. Hason (Ont CA, 2024) the Ontario Court of Appeal considers a fresh evidence issue, here where an expert witness' testimony fell into serious questioning:(ii) The Testimony and Findings Are Admissible as Fresh Evidence
[106] I next consider whether to admit Dr. Woodside’s Nettleton testimony and Justice Bird’s findings concerning that testimony as fresh evidence. I apply the fresh evidence test because this court’s decisions establish that it applies to both the testimony and the findings. In R. v. Abbey, this court held that an expert’s testimony in another case may be admitted as fresh evidence, including where, as here, it is described in a judicial decision: 2017 ONCA 640, 140 O.R. (3d) 40, at paras. 37-40, 45.[6] Likewise, in its additional submissions the Crown cited R. v. Ghorvei, which held that the fresh evidence test governs whether an appellate court can consider judicial findings of fact concerning a witness that are contained in a decision in a different case: (1999), 49 O.R. (3d) 63 (C.A.), at paras. 22-37. However, Justice Bird’s legal analysis in Nettleton is not subject to the fresh evidence test because it is not evidence. Rather, it is persuasive legal authority: see, e.g., Karatzoglou v. Commisso, 2023 ONCA 295 (in Chambers), at paras. 20, 22.
[107] Fresh evidence is admissible in dangerous offender appeals if it meets the following five requirements:1. Due diligence: The evidence could not have been adduced at the hearing through due diligence;
2. Relevance: The evidence bears on a decisive or potentially decisive issue;
3. Admissibility: The evidence is admissible under the rules of evidence;
4. Credibility: The evidence is reasonably capable of belief; and,
5. Impact: If believed, the evidence would reasonably be expected to affect the result when considered with the other evidence. See R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at paras. 28-29; R. v. Sawyer, 2015 ONCA 602, 127 O.R. (3d) 686, at para. 70; Truscott, at para. 92. . Colonna v. Fellin
In Colonna v. Fellin (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from an unsuccesful defendant in a joint venture case.
Here, the court sets out the test for fresh evidence:[24] The test on a motion to adduce fresh evidence on appeal is well-established. The moving party must prove that the proposed evidence:a. could not have been adduced at first instance through the exercise of reasonable diligence;
b. is relevant upon a decisive or potentially decisive issue;
c. is credible, and
d. if reasonably believed, when taken with the other evidence adduced at trial, could be expected to have affected the result: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. ....
[31] I agree that these documents could have been obtained at the time of the summary judgment motion. Fundamentally, as I will explain, the appellants failed to put their best foot forward at the summary judgment motion and are now trying to remedy the shortcomings in their evidence. In any event, the fresh evidence would not have affected the motion judge’s decision. I would dismiss the motion to admit fresh evidence. . R. v. Mills
In R. v. Mills (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a guilty plea for "failing to remain at the scene of a fatal traffic accident", here based in collateral immigration consequences of the conviction.
In these quotes, the court allows a fresh evidence application for new evidence in order to assess "the very validity of the trial process":B. The Fresh evidence application
[5] The appellant seeks to adduce fresh evidence, consisting of his own affidavit and an affidavit from his trial counsel; transcripts of their cross-examinations; and an affidavit from a legal assistant.
[6] The Crown agrees that this fresh evidence falls “outside the ‘Palmer paradigm’” because it is being tendered to assess “the very validity of the trial process”: R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.), at p. 232; R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193. Crown counsel accordingly takes no issue with the admission of the fresh evidence. We agree. . R. v. Nowack
In R. v. Nowack (Ont CA, 2024) the Court of Appeal considers a fresh evidence 'exception', here where the applicant seeks an 'original remedy', here related to allegations of lost evidence:[10] When an appellate court is considering an application for an original remedy, such as a stay of proceedings, the test for admitting fresh evidence is set out by Arbour J. in United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, where she said, at para. 45:In such cases, the evidence is not offered as a foundation for reviewing the decision under appeal, but as a basis for requesting an original remedy in the Court of Appeal. Consequently, in these circumstances, the evidence must be relevant to the remedy sought before the Court of Appeal. It must be credible and sufficient, if uncontradicted, to justify the court making the order. [11] In considering the appellant’s request to embark on a process that is intended to lead to a fresh evidence application, we must evaluate whether that process could reasonably lead to the discovery of evidence that might meet this test for admissibility as fresh evidence. There is no basis, on this record, to suggest that the TPS, or the prosecuting Crown, was ever anything but honest and open about what they knew at the various times that they advised the trial judge that the emails had been deleted. It is simply the case that subsequent information demonstrated that the initial understanding of the TPS, and the prosecuting Crown, was both confused and erroneous. However, the appellant has failed to demonstrate any air of reality to his submission that this conduct could amount to an obstruction of justice or that it was undertaken in a manner that undermines the integrity of the administration of justice. . Shannon v. Hrabovsky
In Shannon v. Hrabovsky (Ont CA, 2023) the Court of Appeal considered (and dismissed) an appeal of an application ruling that restored an earlier will as governing the estate.
Here the court considers a fresh evidence motion:[27] The principles governing the admission of fresh evidence in civil appeals were summarized as follows by this court in St. Amand v. Tisi, 2018 ONCA 106, 89 R.P.R. (5th) 1, at para. 8:Paragraph 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, permits this court to receive fresh evidence in a civil appeal. The test for admitting fresh evidence is well established. The party seeking to introduce the fresh evidence 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 overriding criterion is that fresh evidence will be admitted only where it is in the interests of justice to do so. See: Center City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373, at paras. 3-4; and Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at para. 9. See also Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.
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[34] The appellants cite this court’s comments in Dean v. Mister Transmission (International) Limited, 2010 ONCA 443, 267 O.A.C. 67, at para. 17:The due diligence test for the admission of fresh evidence is less significant when the evidence is in the hands of a party against whom it is tendered and there was an obligation on the party to disclose or to produce it. See: R. Clancy Heavy Equipment Sales Ltd. v. Joe Gourley Construction Ltd.(2001), A.B.C.A. 114 (Alta. C.A.). [35] In my view, this principle does not assist the appellants. In Dean, the appellant was seeking to adduce a relevant document that it only obtained after summary judgment had been granted. Counsel for the appellant had previously requested a copy of this document from the respondent, whose counsel had undertaken to review it and disclose any parts of it that were relevant, but had then seemingly failed to do so. The appellant later obtained the document from a third party. In contrast, in the case at bar the appellants’ own counsel and their witness, Ms. Woodruff, both had copies of the Pease letter in their possession well before Gayle commenced her application. They cannot complain that she breached her obligation “to disclose or to produce it” to them. Unlike the situation in Dean, nothing stopped the appellants from putting the Pease letter into evidence on the application had they chosen to do so.
[36] I conclude that the appellants have not met their burden of demonstrating that they could not have put the Pease letter or Ms. Woodruff’s evidence bearing on the limitations issue into evidence on the application if they had exercised reasonable diligence.
[37] As Doherty J.A. noted in Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, 398 D.L.R. (4th) 652, leave to appeal refused, [2016] S.C.C.A. No. 279, at para 49:Finality concerns, especially important in civil proceedings, demand a restrictive approach to the admissibility of evidence on appeal. The due diligence inquiry, an important consideration in determining whether to admit fresh evidence on appeal, reflects the restrictive approach taken to the admission of fresh evidence on appeal. See also Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 61. Later, the court continues respecting a second fresh evidence issue:[76] In my view, the interest of finality weighs heavily against admitting this evidence on appeal. An appeal is not meant to give unsuccessful litigants the chance for a do-over where they can present their case differently. As discussed above, this court has noted that finality concerns are “especially important in civil proceedings” and “demand a restrictive approach to the admissibility of evidence on appeal”: Iroquois Falls, at para. 49; Stekar v. Wilcox, 2017 ONCA 1010, 32 E.T.R. (4th) 199, at para. 27; and St. Amand, at para. 10.
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