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Fresh Evidence - Practice

Where the allowing of fresh evidence is sought on an appeal, the motion for it shall be heard at the main appeal hearing [R61.16(2)].

. Lacroix v. Central-McKinlay International Ltd.

In Lacroix v. Central-McKinlay International Ltd. (Div Ct, 2022) the Divisional Court considered some fresh evidence practice issues:
[12] The respondent also notes that the proposed fresh evidence has been tendered late in the appeal process, is not in proper form (the affidavit was not sworn prior to the hearing of the appeal), and that no motion was been brought to adduce the fresh evidence – it was filed without an order or a motion. If justice required it, the court could consider a request for fresh evidence, despite these procedural irregularities. Since the proposed fresh evidence is not admissible in any event, we decline to exercise our discretion to overlook these irregularities and also refuse to admit the evidence on these procedural grounds.
. Zareski v. Umar

In Zareski v. Umar (Div Ct, 2021) the Divisional Court held that a motion for fresh evidence must be brought as formal motion, with notice and affidavit:
[7] The appellant entitled his factum for the appeal as relating to a motion for fresh evidence. However, he served no Notice of Motion to admit fresh evidence nor any affidavit in support. Thus, there was no proper motion to admit fresh evidence before the Court, and evidence that was not before the Board was not considered on this appeal.
. Landau v. Canada (Attorney General)

In Landau v. Canada (Attorney General) (Fed CA, 2021) commented on fresh evidence practice:
[12] Incidentally, fresh evidentiary material should never be put to the Court in a book of authorities: Forest Ethics Advocacy Association v. National Energy Board, 2014 FCA 88 at para. 14, citing Public School Boards’ Association of Alberta v. Alberta (Attorney General), 1999 CanLII 640 (SCC), [1999] 3 S.C.R. 845.
. Hirtle v. College of Nurses of Ontario

In Hirtle v. College of Nurses of Ontario (Div Ct, 2021) a single judge of the Divisional Court cited R61.16(2) which sets out the practice regarding fresh evidence issues:
Motion to Receive Further Evidence

R61.16(2) A motion under clause 134 (4) (b) of the Courts of Justice Act (motion to receive further evidence) shall be made to the panel hearing the appeal.
The court states:
[2] Pursuant to s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”), the court to which an appeal is made may admit further evidence on appeal to enable the court to determine the appeal. Rule 61.16(2) specifies that a motion to admit further evidence brought pursuant to s. 134(4)(b) of the CJA “shall be made to the panel hearing the appeal.”

[3] In addition, s. 21(3) of the CJA specifies that a single judge of the Divisional Court “shall” hear and determine motions “unless otherwise provided by the rules of court.”

[4] This appeal is scheduled to be heard by a panel on February 23, 2022. Given the wording of ss. 21(3) and s. 134(4)(b) of the CJA and rule 61.16(2), I have no jurisdiction to determine the motion and the cross-motion to admit further evidence on the appeal. Accordingly, I order that the motion and cross-motion are adjourned to by heard and determined by the panel hearing the appeal.


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