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Appeal - Fresh Evidence (4). Bala v. Vanrivong
In Bala v. Vanrivong (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a plaintiff unionized worker's appeal from a Small Claims dismissal, here where the lower court granted a "motion to strike the claim finding that the Act is clear in that the right to grieve is in lieu of the right to bring an action".
Here the court sets out fresh evidence doctrine:[10] The test for fresh evidence on appeal requires the court to consider four factors: (i) whether the fresh evidence could not have, by the exercise of due diligence, been available at trial; (ii) whether the fresh evidence is relevant in that it bears upon a decisive or potentially decisive issue; (iii) whether the fresh evidence is credible in the sense that it is reasonably capable of belief; and (iv) whether the fresh evidence, if believed, is such that it could reasonably, when taken with the other evidence adduced at trial, have affected the result: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775; R. v. Ameyaw, 2025 ONCA 673, at para. 7. . R. v. Sheppard
In R. v. Sheppard (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal, this from an Alberta CA criminal sentence variation for jury convictions for "sexual interference and invitation to sexual touching".
The court considers fresh evidence, here in a criminal sentencing context:[109] The test for admitting new evidence on appeal was set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. There are four criteria for admission: due diligence, relevance, credibility, and impact on the result (ibid.; see also R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 29; R. v. Angelillo, 2006 SCC 55, [2006] 2 S.C.R. 728). This test applies “whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts that occurred before or after trial” (Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 3). Guided by an overarching concern for the interests of justice, this test strikes a balance between “finality and order in the justice system”, on the one hand, and “reaching a just result in the context of the proceedings”, on the other (paras. 31-32; R. v. Bharwani, 2025 SCC 26, at para. 102). . Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency)
In Universal Ostrich Farms Inc. v. Canada (Food Inspection Agency) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a Federal Court judgment dismissing "an application for judicial review of two related decisions of the respondent, the Canadian Food Inspection Agency (the CFIA)" in a high-media case involving the cull of a flock of farmed ostriches.
Here the court considers 'ineffective assistance of counsel' doctrine, here in a fresh evidence motion targetted at raising that issue - discussing it in both JR and appeal contexts:(2) Evidence of ineffective assistance
[33] We also decline to admit the evidence of ineffective assistance of counsel due to the nature of this appeal, where the alleged ineffectiveness occurred before a lower court hearing an application for judicial review.
[34] The affidavit the appellant wishes to tender outlines that the appellant’s counsel before the Federal Court took a security interest for unpaid legal fees in the proceeds that the appellant would receive under the Compensation for Destroyed Animals and Things Regulations, SOR/2000-233 [Compensation Regulations] if the flock were destroyed. Attached as exhibits to the affidavit are copies of the security agreement as well as email communications between the appellant’s principals, its counsel before the Federal Court, and another lawyer who acted as independent counsel to the appellant regarding the security agreement. The appellant alleges this security interest created a conflict of interest.
[35] In Mediatube Corp. v. Bell Canada, 2018 FCA 127, 156 C.P.R. (4th) 289 [Mediatube], a case involving a trial—as opposed to an application for judicial review—where ineffective assistance of trial counsel was alleged, Justice Stratas explained at paragraph 58 that "“[i]n adducing evidence, the appellant does not need to satisfy the stringent test for fresh evidence ""in ""Palmer v. The Queen, "1979 CanLII 8 (SCC), "[1980] 1 S.C.R. 759""”". Subsequent case law provides that "“the evidence being adduced ‘must be admissible (applying the usual rules of evidence), relevant to the issue raised on appeal, and credible’”" (Nguyen v. 1108911 B.C. Ltd., 2024 BCCA 48 [Nguyen] at para. 15, citing Boone v. Jones, 2023 BCCA 215 at para. 34, R. v. Aulakh, 2012 BCCA 340, 326 B.C.A.C. 177 at paras. 59–67, and Beaulieu v. Winnipeg (City of), 2021 MBCA 93 at paras. 28–35, 54–63).
[36] As for what is required for the appellant to succeed on this ground, "“the appellant must show that counsel’s acts or omissions constituted incompetence and a miscarriage of justice resulted”" (Mediatube at para. 29, citing R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520). In the context of an appeal, an actual conflict that affected counsel’s performance is generally sufficient; typically, it need not have affected the result of the trial: Mediatube at para. 57. See also Nguyen at para. 54.
[37] The foregoing statements regarding admissibility on appeal of evidence of alleged incompetence of counsel before a lower court must be modified in the context of an allegation of ineffective counsel before a lower court presiding over an application for judicial review, rather than a trial, due to the different standard of review applied in a judicial review appeal as opposed to other appeals.
[38] On appeal in a judicial review application, like the present one, this Court must determine whether the Federal Court identified the proper standard of review to be applied to the CFIA’s decisions and whether it properly applied that standard: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 [Agraira] at paras. 45–47; Northern Regional Health Authority v. Horrocks, 2021 SCC 42, [2021] 3 S.C.R. 107 [Horrocks] at paras. 10–12. Therefore, this Court essentially steps into the shoes of the Federal Court, performs a de novo review of the CFIA’s decisions, and accords "“no deference to the reviewing judge’s application of the standard of review”" (Horrocks at para. 10.)
[39] This Court has previously held that what is in essence a "“do-over”" on appeal effectively cures breaches of procedural fairness that occur before the Federal Court in a judicial review application: see Haynes v. Canada (Attorney General), 2023 FCA 158 at paras. 14–16, leave to appeal to SCC refused, 41047 (6 June 2024); Whitelaw v. Canada (Attorney General), 2025 FCA 68 at paras. 10, 16; Jagadeesh v. Canadian Imperial Bank of Commerce, 2024 FCA 172 at para. 40. That logic applies equally to allegations of ineffective assistance of counsel before the Federal Court in a judicial review application.
[40] An exception would arise only if an appellant raises errors in the court below for matters to which appellate standards of review apply, namely, "“findings of fact or mixed fact and law based on the consideration of evidence at first instance”" (Apotex Inc. v. Canada (Health), 2018 FCA 147, 157 C.P.R. (4th) 289 at para. 57) or in its exercise of remedial discretion (see e.g., Makivik Corporation v. Canada (Attorney General), 2021 FCA 184 at para. 65). The appellant does not allege that the Federal Court erred in respect of any such matters.
[41] Thus, the appellant’s ability to directly challenge the CFIA’s decisions before us means that the evidence of ineffective assistance is not relevant on appeal and should not be admitted: see Nguyen at para. 15. . Ricketts v. Veerisingnam [this in the context of RTA administrative 'ineffective assistance of counsel' argument]
In Ricketts v. Veerisingnam (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an RTA s.210 appeal, here where the main issue was how the RTA system should consider a party's argument of 'ineffective assistance of counsel' - typically (though not always) advanced as a criminal defence.
The court considers a fresh evidence motion, here in this novel RTA 'ineffective assistance' context:B. Argument Based on “Ineffective Assistance”
New Issue on Appeal and the Fresh Evidence Motion
[33] My colleague would consider the ineffective assistance argument in this court, at first instance, and would admit fresh evidence from the Appellant on this issue. He notes “[a]s normally is the case when ineffective assistance of counsel is raised as a ground of appeal, the fresh evidence motion is granted in the interests of justice.” My colleague cites appellate authority in support of this proposition from the Court of Appeal in criminal appeals in which the ineffective assistance argument was argued.
[34] This is not an appeal from the trial decision of a criminal court. It is an appeal and application for judicial review from an administrative decision over a residential tenancy which was subject to a reconsideration process before the LTB. It is in this context that this court must consider whether to permit the Appellant to raise a new issue in this court [see: Perez v. Governing Council of the Salvation Army of Canada, (1998), 1998 CanLII 7197 (ON CA), 42 OR (3d) 229 (CA); Kaiman v. Graham, 2009 ONCA 77, applying the principle stated in dissenting reasons in R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 SCR 918, para. 20], and whether to admit the Appellant’s proposed fresh evidence for the first time in this court. The test for admitting fresh evidence on appeal is as stated by The Supreme Court of Canada in Palmer v. The Queen (1979), 1979 CanLII 8 (SCC), 50 CCC (2d) 193 at 205:(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;
(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. [35] The original hearing before the LTB took place over two days. The Appellant was self-represented on the first day of the hearing, September 25, 2023. One of the respondents and Ms Naeanashannutam testified on the first day of the hearing. At the hearing, the Appellant was clear with the LTB that she was taking the position that the eviction was not in good faith.
[36] Between the first day of the hearing and its resumption on October 27th, the Appellant retained a paralegal to assist her. As quoted by my colleague in his reasons, at the start of the resumption, the paralegal told the LTB that the Appellant was not contesting whether the eviction was in good faith, but instead was pursuing her request that the eviction be deferred for one year in light of the Appellant’s personal circumstances. The LTB noted this concession, as reflected in the transcript, and then the hearing resumed and was completed on October 27th.
[37] The Appellant’s position is that her paralegal abandoned her principal argument contrary to her instructions. It is on this basis that she alleges ineffective assistance by her paralegal and requests that the eviction order be quashed and a new hearing ordered.
[38] Integral to this argument is the Appellant’s position that, because of disability, she was unable to appreciate and address the shortcomings in her paralegal’s representation in a timely way before the Board. My colleague accepts this position on the basis of the unchallenged evidence of the Appellant: the paralegal did not provide evidence, though served with the motion materials, and the Respondents did not cross-examine the Appellant on her evidence.
[39] I would not accept the Appellant’s evidence about the impact of her disability on her ability to address before the LTB the shortcomings in her paralegal’s representation of her, for the following reasons:i. Although I would accept that the Appellant was unable to intervene at the hearing when her paralegal told the LTB that his client was no longer pursuing an argument that the termination was in bad faith, this does not explain the Appellant’s failure to address this issue with the Tribunal between the end of the hearing and release of the Tribunal’s decision – a period of about ten weeks.
ii. The Appellant’s claim that she did not understand what her paralegal had done until she received the Tribunal’s decision is incredible. The Tribunal’s decision does not mention the impugned concession made by the Appellant’s paralegal. To the contrary, the Tribunal’s decision states and decides the question of the Respondents’ good faith – from which an objective reader would understand that the issue had not been conceded at the hearing. The Tribunal’s reasons do not state or rely upon “what her paralegal had done” and so cannot be a basis upon which the Appellant could have understood, for the first time, that her paralegal had conceded the issue at the hearing. [40] Further, I would not accept the Appellant’s submission that she was unable to address the shortcomings in her paralegal’s representation during the Reconsideration process for the following reasons:i. In the knowledge that her paralegal had disobeyed her instructions and failed to pursue an important issue before the LTB, that Appellant continued to retain and instruct the paralegal for the purpose of seeking reconsideration before the LTB. This decision was unreasonable on its face and is not explained by the Appellant’s disability.
ii. The Appellant’s paralegal told the Appellant, in writing, that he would not be advancing arguments on reconsideration addressed at alleged lack of good faith by the Respondents. Even in the face of this clear statement, the Appellant continued to retain the paralegal for purposes of the Reconsideration process. If the Appellant wished to pursue this argument on Reconsideration, her decision to continue to retain the paralegal in the face of his clear communication that he would not advance the issue, was unreasonable and is not explained by the Appellant’s disability.
iii. I would not accept the Appellant’s submission that she could not terminate her retainer of her paralegal because of the short deadline to seek Reconsideration, the difficulty of locating a representative, and her disabilities. The deadline for Reconsideration is thirty days, more than sufficient time for the Appellant to find a new representative or to self-represent before the LTB. At minimum, there is no reason why the Appellant could not have raised the issue of ineffective assistance, requested time to make further submissions on the issue, and advised the LTB of the impact of her disability on her capacity to address the issue within thirty days. This point is demonstrated beyond debate by the Appellant’s original Notice of Appeal – which was delivered on January 31, 2024 – less than thirty days after the original decision. In two clear, concise paragraphs, the Appellant sets out the “ineffective assistance” issue as a ground of appeal. If the Appellant could deliver the Notice of Appeal within thirty days – raising the shortcomings in her paralegal’s representation of her – then she could have raised the issue on Reconsideration within thirty days. [41] In my view, the Appellant was obliged to raise her “ineffective assistance” argument at the earliest reasonable opportunity before the LTB. She could have, but did not, raise it during the ten-week interval between the end of the hearing and release of the LTB’s decision. She could have, but did not, raise it during the Reconsideration proceedings. I would find that the proposed fresh evidence does not meet the first branch of the Palmer test, and I would not permit her to raise the issue for the first time in this court.
[42] Further, it is not clear to me that the proposed fresh evidence would have been potentially decisive before the LTB or could have affected the result (the second and fourth branches of the Palmer test). However, it is difficult to assess the potential impact of the proposed fresh evidence, since the LTB decided the very issue that the Appellant argues her paralegal had withdrawn before the Tribunal. Given this context, had the Appellant satisfied the first branch of the Palmer test, I would have directed that the request to re-open the LTB hearing be directed back for fresh Reconsideration at the LTB. I address the details of this alternative approach below, when considering my colleague’s approach to remedy.
[43] For these reasons – the Appellant’s failure to meet the first branch of the Palmer test and her failure to raise this issue prior to release of the LTB’s decision or during the Reconsideration process, I would dismiss the appeal. . Brodsky v. College of Nurses of Ontario
In Brodsky v. College of Nurses of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from "decision of the Discipline Committee of the College of Nurses" that "found that the appellant committed acts of professional misconduct".
Here the court considered the law of fresh evidence:[20] R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, describes the factors to be considered in exercising the discretion to receive fresh evidence. Those factors include:a. Admissibility: is the evidence admissible under the operative rules of evidence
b. Cogency: is the evidence sufficiently cogent in that it could reasonably be expected to have affected the outcome of the decision under appeal; and
c. Due diligence: what is the explanation offered for the failure to adduce the evidence and should that explanation affect the admissibility of the evidence. . Alyange Holdings Inc. v. Dewdney Mountain Farms Ltd.
In Alyange Holdings Inc. v. Dewdney Mountain Farms Ltd. (Ont CA, 2025) the Ontario Court of Appeal allowed an appellate motion, here seeking "a motion for an order striking out portions of the responding parties’ Appeal Book and Compendium on the basis that these documents were not before the motion judge":[7] The responding parties refused to remove the Impugned Documents, arguing that they were appropriately included in the Appeal Book and Compendium by virtue of r. 61.10(1) of the Rules of Civil Procedure and, in particular, subsections (f) and (i) thereof. These subsections provide that the Appeal Book and Compendium shall contain:(f) a copy of the pleadings or notice of application or of any other document that initiated the proceeding or defines the issues in it;
...
(i) a copy of any other documents relevant to the hearing of the appeal that are referred to in the appellant’s factum. ....
[10] It is well established that the evidence considered on appeal should be limited to that which was before the lower court that issued the decision. The reason for this is obvious. As this court explained in Pollon v. American Home Assurance Co. (1991), 1991 CanLII 7117 (ON CA), 3 O.R. (3d) 59 (C.A.), at para. 4, if parties are free to expand the record on appeal beyond that put before the lower court, “the appeal would thereby cease to be from the case on which the judgment below was rendered.” Moreover, as the Supreme Court pointed out in Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 39, such an approach would be profoundly unfair, since it would give a party who has failed to act with due diligence at first instance a “second kick at the can”, while requiring the opposing party to answer a new case on appeal.
[11] There is nothing in r. 61.10(1)(f) or (i) that would support a different result.
[12] With respect to subsection (f), which refers to inclusion of the pleadings in the Appeal Book, r. 25.06 provides that “pleading[s] shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved” (emphasis added). To the same effect is r. 38.04, which provides that a notice of application shall “state the documentary evidence to be used at the hearing” but, consistent with r. 25.06, not include the evidence itself. Thus, when Di Luca J. ordered that the 2019 notice of application be treated as a statement of claim, it did not have the effect of including the evidence relied on in the application, since to do so would have been contrary to rr. 25.06 and 38.04.
[13] Nor does subsection (i) of r. 61.10(1) assist the responding parties, since a party cannot expand the record on appeal simply by referring to fresh evidence in their factum. This would offend the principles of finality and fairness identified by the Supreme Court in Barendregt. If a party wishes to expand the record on appeal, the proper procedure is to bring a fresh evidence application, which the responding parties have not done.
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