|
Presentation - Fresh Evidence. 1895366 Ontario Inc. et al v. Fawaz [fresh evidence and self-presenters]
In 1895366 Ontario Inc. et al v. Fawaz (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a Small Claims Court appeal, this brought against decisions "ordering the appellant to pay the respondent $25,000, and dismissing the appellant’s claim for damages", here involving corporate veil issues.
Here the court considers the purpose of 'fresh evidence' doctrine. I find the last sentence disconcerting in this age of frequent self-presenting parties (though both parties were represented here) - ie. would admitting fresh evidence - and thus "allowing the appellant to remedy the deficiencies in his trial on appeal, with the benefit, and guidance, of the trial reasons" - necessarily result in "unfairness". It can't be rare that a self-presenter, after receiving a negative ruling and reading it realizes that 'if only' they has adduced this (otherwise available) evidence - or argued that (unknown to them) legal principle that they might have won? Cannot a case be re-opened such that fairness is still accorded to the opposing party? Is the presumption that a self-presenter 'chooses' to advance their case without counsel fair, if it grounded in the assumption that they are doing so to save money - when they couldn't afford to pay counsel in the first place? Is the value of court institutional and party 'finality' so great that we risk making a wrong decision?
If the respondent parties were give notice of the fresh evidence (which they usually are) and either the trial (or even the appeal) court willing to re-open the case, would justice not better be served? Does the de facto fresh evidence doctrine requiring all parties to 'put their best foot forward' fail to recognize these new realities of our justice systems?
Here the court states:[17] In Barendregt v. Grebliunas, 2022 SCC 22, [2022]1 S.C.R. 517, the SCC reconfirmed the test set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, and held that fresh or new evidence should not be allowed to be adduced where an appellant seeks to overturn an unfavourable trial outcome by adducing evidence on appeal that could have been available at first instance, had they acted with due diligence. If an appellate court allows such evidence to be adduced, it is effectively allowing the appellant to remedy the deficiencies in his trial on appeal, with the benefit, and guidance, of the trial reasons giving rise to considerable unfairness. . McHale v. Khullar
In McHale v. Khullar (Ont Div Ct, 2026) the Ontario Divisional Court considered whether the test for fresh evidence is more generous for self-presenters:[28] One of the tests for the admission of fresh evidence at an appeal is that the proposed evidence could not have been, through due diligence, adduced at trial: Schram v. Thompson, 2022 ONSC 6922, at para. 19. The Tenant does not explain why this new evidence was not available at the original hearing on May 2, 2024.
[29] 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.
|
