Presenting New Evidence on Appeal – Relevant Factors

Brace v Canada, 2014 FCA 92

The appellant brought a motion under Rule 351, to introduce new evidence on appeal from the TCC decision. The evidence would undercut the factual basis of the TCC decision.

ANALYSIS

The Court stated that, normally, only documents that were before the TCC could appear in the appeal book.   The court stated:

[11]           The test for the admission of new evidence is stringent: Palmer v. The Queen, [1980] 1 S.C.R. 759; Shire Canada Inc. v . Apotex Inc., 2011 FCA 10. In my view, all parts of the test are met in this case:

(1)                    The evidence should not be admitted if, by due diligence, it could have been adduced at trial. This is met. The January 7, 2014 letter postdates the trial.

(2)               The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. This is met. The January 7, 2014 letter relates to the respondent’s undated document, which document formed a key part of the factual finding that that the appellant consistently refused to provide contact information.

(3)               The evidence must be credible in the sense that it is reasonably capable of belief. This is met. Written by a court official in the ordinary course of business, the January 7, 2014 letter is reasonably capable of belief.

(4)               The evidence 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. This is met. If the panel hearing the appeal believes and gives weight to the January 7, 2014 letter, the letter may lead the panel to form conclusions regarding the respondent’s undated letter. This, as I have said, relates to the trial judge’s key finding that the appellant consistently refused to provide contact information.

Even if the above test is not met, the court has residual discretion to admit new evidence on appeal in the interest of justice.  This is to be done only in the clearest of cases (R. v. J.A.A., 2011 SCC 17).

The FCA granted the motion to include the fresh evidence, using the residual discretion, because of the unusual circumstances (the fresh evidence already being filed in an appeal book), the unlikelihood that its admission will set into motion a series of complicated factual disputes, and the fact that the panel hearing the appeal may make any order it sees fit as to its admissibility.

– Sas Ansari, JD LLM PhD (exp)

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