Simon's Megalomaniacal Legal Resources

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)].

. Hudson v. Canada

In Hudson v. Canada (Fed CA, 2024) the Federal Court of Appeal considers an appeal motion for fresh evidence, and in so doing draws a distinction between fresh evidence and the inclusion of documents in the appeal book:

[1] In the present appeal from a judgment of the Tax Court of Canada, the appellant moves for an Order that:

1. The Court grant the appellant leave to adduce fresh evidence pursuant to Rule 351 of the Federal Courts Rules, S.O.R./98-106, as follows: ...

....

II. Fresh Evidence

[6] The parties agree that a party seeking to adduce fresh evidence must establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in the sense that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below; and that, if the evidence fails to meet the foregoing criteria, the Court still possesses a residual discretion to admit the evidence on appeal, though such discretion should be exercised sparingly and only in the clearest of cases, where the interests of justice so require (see Coady v. Canada (Royal Mounted Police), 2019 FCA 102 at para. 3).

....

[10] I agree with the respondent that fresh evidence pursuant to Rule 351 should not be allowed. The appellant was aware of the importance of the tax returns and Dr. Raynor’s letters and has not convinced me that she exercised due diligence in introducing them into evidence. She points to a trial exhibit as evidence of Dr. Raynor’s vacation, but she does not point to any exchange with the Tax Court in which she asserted the necessity of relying on Dr. Raynor’s letters as hearsay evidence because of her unavailability. The appellant also does not adequately document her allegation that the Tax Court initially indicated that she could introduce Dr. Raynor’s letters through her testimony. Finally, I am also not convinced by the appellant’s bald allegation that she could not have introduced the B.C. Minister of Finance document as evidence at trial with the exercise of due diligence.

[11] Nevertheless, the appellant alleges in her notice of appeal that the Tax Court erred in refusing to accept at least the tax documents and Dr. Raynor’s letters as evidence. In order for this Court to be in a position to determine whether the Tax Court erred in this respect, it will be necessary to have reference to these documents. Therefore, though they will not be accepted as fresh evidence, they should be included in the appeal book.

. dTechs EPM Ltd. v. British Columbia Hydro and Power Authority

In dTechs EPM Ltd. v. British Columbia Hydro and Power Authority (Fed CA, 2023) the Federal Court of Appeal noted the general provincial court practice of reserving the admissibility of fresh evidence to the panel hearing the appeal on it's merits:

[27] It is also worth noting that the rules of procedure and/or the case law of most provincial courts of appeal clearly spell out that motions to admit new evidence on appeal should only be heard by a panel or the panel hearing the merits of the appeal. In Quebec, the statutory requirement that the new evidence be indispensable (article 380 of the Code of Civil Procedure, C.Q.L.R. c. C-25.01) has been construed in a manner consistent with the Palmer test. Only a panel can deal with such a motion, and it is common practice for said panel to allow the evidence to be included in the appeal record, and to defer to the panel hearing the merits of the appeal the determination on its admissibility and impact—akin to the approach taken by the motion judge in the present case (Syndicat des copropriétaires du Square Champlain II c. Syndicat des copropriétaires du Samuel de Champlain, 2018 QCCA 1538; Duscheneau c. Ville de Montréal, 2019 QCCA 1955; Simon c. Haccoun, 2020 QCCA 64).

. R. v M.P.

In R. v M.P. (Ont CA, 2023) the Court of Appeal comments importantly on when a motion to re-open a trial is appropriate, as opposed to a motion for fresh evidence on appeal:

[23] We also agree with the Crown that there is no explanation offered for the failure to adduce this evidence at trial. While due diligence is not a prerequisite to receiving fresh evidence on appeal, it is an important consideration. In any event, as the evidence was available prior to sentencing, the evidence should have been brought forward before the trial judge on a motion to reopen the trial: R. v. Khan, 2022 ONCA 698, at paras. 16-17.

. 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.