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Appeals - Fresh Evidence (3). Colonna v. Fellin
In Colonna v. Fellin (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal from an unsuccesful defendant in a joint venture case.
Here, the court sets out the test for fresh evidence:[24] The test on a motion to adduce fresh evidence on appeal is well-established. The moving party must prove that the proposed evidence:a. could not have been adduced at first instance through the exercise of reasonable diligence;
b. is relevant upon a decisive or potentially decisive issue;
c. is credible, and
d. if reasonably believed, when taken with the other evidence adduced at trial, could be expected to have affected the result: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. ....
[31] I agree that these documents could have been obtained at the time of the summary judgment motion. Fundamentally, as I will explain, the appellants failed to put their best foot forward at the summary judgment motion and are now trying to remedy the shortcomings in their evidence. In any event, the fresh evidence would not have affected the motion judge’s decision. I would dismiss the motion to admit fresh evidence. . R. v. Mills
In R. v. Mills (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a guilty plea for "failing to remain at the scene of a fatal traffic accident", here based in collateral immigration consequences of the conviction.
In these quotes, the court allows a fresh evidence application for new evidence in order to assess "the very validity of the trial process":B. The Fresh evidence application
[5] The appellant seeks to adduce fresh evidence, consisting of his own affidavit and an affidavit from his trial counsel; transcripts of their cross-examinations; and an affidavit from a legal assistant.
[6] The Crown agrees that this fresh evidence falls “outside the ‘Palmer paradigm’” because it is being tendered to assess “the very validity of the trial process”: R. v. Widdifield (1995), 1995 CanLII 3505 (ON CA), 100 C.C.C. (3d) 225 (Ont. C.A.), at p. 232; R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, 50 C.C.C. (2d) 193. Crown counsel accordingly takes no issue with the admission of the fresh evidence. We agree. . R. v. Nowack
In R. v. Nowack (Ont CA, 2024) the Court of Appeal considers a fresh evidence 'exception', here where the applicant seeks an 'original remedy', here related to allegations of lost evidence:[10] When an appellate court is considering an application for an original remedy, such as a stay of proceedings, the test for admitting fresh evidence is set out by Arbour J. in United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, where she said, at para. 45:In such cases, the evidence is not offered as a foundation for reviewing the decision under appeal, but as a basis for requesting an original remedy in the Court of Appeal. Consequently, in these circumstances, the evidence must be relevant to the remedy sought before the Court of Appeal. It must be credible and sufficient, if uncontradicted, to justify the court making the order. [11] In considering the appellant’s request to embark on a process that is intended to lead to a fresh evidence application, we must evaluate whether that process could reasonably lead to the discovery of evidence that might meet this test for admissibility as fresh evidence. There is no basis, on this record, to suggest that the TPS, or the prosecuting Crown, was ever anything but honest and open about what they knew at the various times that they advised the trial judge that the emails had been deleted. It is simply the case that subsequent information demonstrated that the initial understanding of the TPS, and the prosecuting Crown, was both confused and erroneous. However, the appellant has failed to demonstrate any air of reality to his submission that this conduct could amount to an obstruction of justice or that it was undertaken in a manner that undermines the integrity of the administration of justice. . Shannon v. Hrabovsky
In Shannon v. Hrabovsky (Ont CA, 2023) the Court of Appeal considered (and dismissed) an appeal of an application ruling that restored an earlier will as governing the estate.
Here the court considers a fresh evidence motion:[27] The principles governing the admission of fresh evidence in civil appeals were summarized as follows by this court in St. Amand v. Tisi, 2018 ONCA 106, 89 R.P.R. (5th) 1, at para. 8:Paragraph 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, permits this court to receive fresh evidence in a civil appeal. The test for admitting fresh evidence is well established. The party seeking to introduce the fresh evidence must show that the proposed evidence:. Is credible;
. Could not have been obtained by reasonable diligence before trial or application; and
. If admitted, would likely be conclusive of an issue in the appeal. The overriding criterion is that fresh evidence will be admitted only where it is in the interests of justice to do so. See: Center City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373, at paras. 3-4; and Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at para. 9. See also Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.
....
[34] The appellants cite this court’s comments in Dean v. Mister Transmission (International) Limited, 2010 ONCA 443, 267 O.A.C. 67, at para. 17:The due diligence test for the admission of fresh evidence is less significant when the evidence is in the hands of a party against whom it is tendered and there was an obligation on the party to disclose or to produce it. See: R. Clancy Heavy Equipment Sales Ltd. v. Joe Gourley Construction Ltd.(2001), A.B.C.A. 114 (Alta. C.A.). [35] In my view, this principle does not assist the appellants. In Dean, the appellant was seeking to adduce a relevant document that it only obtained after summary judgment had been granted. Counsel for the appellant had previously requested a copy of this document from the respondent, whose counsel had undertaken to review it and disclose any parts of it that were relevant, but had then seemingly failed to do so. The appellant later obtained the document from a third party. In contrast, in the case at bar the appellants’ own counsel and their witness, Ms. Woodruff, both had copies of the Pease letter in their possession well before Gayle commenced her application. They cannot complain that she breached her obligation “to disclose or to produce it” to them. Unlike the situation in Dean, nothing stopped the appellants from putting the Pease letter into evidence on the application had they chosen to do so.
[36] I conclude that the appellants have not met their burden of demonstrating that they could not have put the Pease letter or Ms. Woodruff’s evidence bearing on the limitations issue into evidence on the application if they had exercised reasonable diligence.
[37] As Doherty J.A. noted in Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, 398 D.L.R. (4th) 652, leave to appeal refused, [2016] S.C.C.A. No. 279, at para 49:Finality concerns, especially important in civil proceedings, demand a restrictive approach to the admissibility of evidence on appeal. The due diligence inquiry, an important consideration in determining whether to admit fresh evidence on appeal, reflects the restrictive approach taken to the admission of fresh evidence on appeal. See also Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 61. Later, the court continues respecting a second fresh evidence issue:[76] In my view, the interest of finality weighs heavily against admitting this evidence on appeal. An appeal is not meant to give unsuccessful litigants the chance for a do-over where they can present their case differently. As discussed above, this court has noted that finality concerns are “especially important in civil proceedings” and “demand a restrictive approach to the admissibility of evidence on appeal”: Iroquois Falls, at para. 49; Stekar v. Wilcox, 2017 ONCA 1010, 32 E.T.R. (4th) 199, at para. 27; and St. Amand, at para. 10.
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