Monday, January 21, 2013

New Evidence Generally Not Accepted On Appeal

Polar Supplies Ltd. v. Cape Dorset (Hamlet), 2013 NUCA 2 is a good source for the principle that, usually, new evidence, as opposed to fresh evidence, is generally not admissible on appeal:



[7]   The Appellant seeks to place in evidence before the Court of Appeal two affidavits, one by Garth Wallbridge, the trustee in control of Polar Supplies Ltd., dated December 6, 2012, and the other by Eric Sirrs, the trustee in bankruptcy, dated December 11, 2012. Both affidavits concern events that have taken place since the hearing before Justice Tulloch and provide evidence that Polar Supplies Ltd. Is in even greater financial difficulty than it was at the time of the hearing.


[8]   The submission of the Appellant is that this evidence is both “fresh” and “new” and that the test for admission should be that laid out in R v Palmer, 1979 CanLII 8 (SCC), [1980] 1 SCR 759, 50 CCC (2d) 193 [Palmer]. Fresh evidence is evidence of events that occurred prior to the hearing in question but was not, for whatever reason, placed before the Court. The test in Palmer addresses the issues raised by this sort of evidence, including due diligence and relevance.


[9]   “New” evidence is exactly what a common sense understanding of the word “new” would suggest. It is evidence of events that occurred after the hearing in question. It makes no sense to apply the Palmer test to new evidence. An appeal arises from a judicial decision made on the basis of events as they were at the time of that decision. It would be nonsensical for appeal courts to consider subsequent events on anything approaching a regular basis, even when the appeal is from an interlocutory application. It would put the Courts of Appeal in the position of constantly re-trying the matters that appear before them.


[10]  It is for this reason that new evidence is usually inadmissible on appeal. The test accepted by this Court is that new evidence will only be allowed on appeal in exceptional circumstances, where it can be shown that the Judge at the first instance made assumptions about future events which the new evidence shows to have been substantially wrong. I also accept that this test will be more liberally applied when the appeal is from a decision on an interlocutory motion, because the substantive trial matters remain ongoing.


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