The materials that can be used on an appeal are limited to materials made exhibits, or at least marked for identification, at trial. That said, the Rule on what can go into Appeal Books does have a subsection that might be seen to broaden the scope of what can be placed before the Court.
Rule 61.10 provides
…
(i) a copy of any other documents relevant to the hearing of the appeal that are referred to in the appellant’s factum…
Some parties on appeal, especially self represented parties, have used this subRule to add all sorts of documents to Appeal Books that were not brought forward at trial.
The recent decision in Okel v. Misheal, 2010 ONCA 562 is helpful in responding to such inclusion of new materials. The Court of Appeal says the practice is improper:
" It is not open to an appellant to simply include documents in an appeal book and expect this court to rely upon the information. To do so is unfair to the respondent and is of no assistance to this court."
If new materials are genuinely necessary and appropriate for the Court of Appeal to consider the proper approach is to deliver a motion to admit fresh evidence and to comply with the requirements for adducing such evidence,
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