Fresh evidence - is due diligence at trial really a prerequisite?

01109718 Saskatchewan Ltd v Agrikalium Potash Corporation, 2011 SKCA 82 deals, among other things, with the test to adduce fresh evidence on appeal. The case suggests that the test is a cumulative one and due diligence is a prerequisite albeit one not strictly enforced in criminal appeals.

Presumably the Court is referring to R. v. J.A.A., 2011 SCC 17 where the Supreme Court overlooked a clear failure to exercise due diligence at trial and admitted as fresh evidence material that could have been before the trial court.

It should be noted that J.A.A. is not limited on its terms to criminal cases. Perhaps suggesting due diligence is a prerequisite to the admission of fresh evidence is too strong a position?

The Court writes:

[8]        The parties argued this application on the basis that the test for admitting fresh evidence is set forth in Maitland v. Drozda, [1983] 3 W.W.R. 193 (Sask. C.A.), at pp. 199-200, and R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775. Under this test, generally an appellate court will not admit evidence as fresh evidence if: (i) by due diligence, it could have been adduced at trial (although this general principle is not strictly applied in criminal cases); (ii) it is not relevant, in the sense that it does not bear upon a decisive or potentially decisive issue; (iii) it is not credible, in the sense that it is not reasonably capable of belief; or (iv) if believed, it could not reasonably be expected, when taken with the other evidence, to have affected the result.
 
[9]        At the outset of the motion, the Appellants properly abandoned their application to adduce certain of the invoices and emails exhibited to Mr. Zuckerman's affidavit since that evidence could have been adduced in Queen's Bench Chambers. As to the remainder, the evidence was not available at the time of the original application, is relevant to the Chambers judge's decision, is reasonably capable of belief, and, if believed, could have reasonably affected the result reached by the Chambers judge, given his line of analysis. Therefore, I would allow the Appellants' application and admit the fresh evidence, but with the comment that, as will be seen, it ultimately did not affect my decision to dismiss the appeal. It follows that we also admit the evidence in the new affidavits submitted by the Respondents.