Introducing Fresh Evidence At An Appeal Hearing

Fresh evidence is not new evidence- fresh evidence existed at the time of the initial trial, but for various reasons could not be put before the court.

New evidence is that which has become available subsequent to the trial, and is much harder to gain admissibility in evidence that is fresh evidence.

This was discussed by Rowles J.A. in Struck v. Struck, (2003), 20 B.C.L.R. (4th) 242, 2003 BCCA 623 at para. 37:

The evidence admitted in this case was not “fresh” evidence as that term is generally understood, for it was not evidence in existence at the time of trial that could have affected the result. Instead, it is evidence of events that occurred subsequent to the trial judgment. Generally speaking the need for certainty and finality leaves no room for the admission of such evidence on appeal: North Vancouver (District of) v. Lunde (1998), 60 B.C.L.R. (3d) 201 at 210 (C.A.)

 

In order to adduce fresh evidence on appeal, the appellant must meet the test set out in Palmer v. The Queen, [1980] 1 S.C.R 759; Spoor v Nicholls (2001), 90 B.C.L.R. (3d) 88 (CA) at para. 16.
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The criteria for the admission of fresh evidence set out in R. v. Palmer, supra, at 775 and applied by this Court in C.fB.A.), supra, are these:

  1. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen [[1964] S.C.R. 484].
  2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
  3. The evidence must be credible in the sense that it is reasonably capable of belief, and
  4. It 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.

See also Stav v. Stav, 2012 BCCA 154 at paras. 30 and 32.

 

Another method of attempting to introduce fresh evidence is through the natural justice as per  Dagneault v. Hatton (1994), 99 B.C.L.R. (2d) 109 (CA) at paras. 13-14.

  1. In Dagneault, the Appellant, ICBC, was seeking to appeal the chambers judge’s decision to dismiss its application for an extension of time for filing the appeal book and transcript because he refused to accept the volume of litigation faced by ICBC as justification for the delay. In his reasons, he found that granting the extension would be tantamount to giving ICBC special treatment as an appellant to not have to follow the court rules regarding filing deadlines. On appeal, ICBC sought to adduce fresh evidence in an affidavit, where they stated they were not trying to receive special treatment, but that the delay in filing the appeal books was due to a muddle and confusion caused by various employees and solicitors of ICBC due to sickness and communication problems.
  2. At paragraph 19 of the judgment, Madam Justice Southin holds:

“But when, as here, the cause of the failure is muddle caused in part by illness and in part by the dilatoriness of the litigants’ advisors, then, unless that dilatoriness is malevolent or there is prejudice to the respondent, I do not think the order to extend the time should be refused unless the appeal is without merit.”

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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