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Appeals - 'New' Evidence. Ontario (Education) v. Grassroots for Affordable Jewish Education Inc.
In Ontario (Education) v. Grassroots for Affordable Jewish Education Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against a successful Divisional Court appeal by the respondent Ontario that struck "an application seeking public funding for Jewish day schools from the Ontario government".
Here the court considers the law of 'fresh' (and 'new', which is distinct) evidence, in this rare constitutional-stare decisis context:A. The Principles Governing the Admission of Additional Evidence on Appeal
[20] The requirements governing the admission of additional evidence on appeal were revisited in Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517. As stated at para. 29 of Barendregt, appellate courts have the discretion to admit additional evidence to supplement the record on appeal when the proposed evidence:(i) could not, by the exercise of due diligence, have been obtained for the lower court;
(ii) is relevant, in that it bears upon a decisive or potentially decisive issue;
(iii) is credible, in the sense it is reasonably capable of belief; and
(iv) is such that, if believed, could have affected the result in the lower court. [21] The admission of additional evidence on appeal “will be rare” because, as the case proceeds up the appellate ladder, the matters in issue between the parties should narrow, rather than expand: Barendregt, at para. 31. To treat additional evidence otherwise would blur the distinction between the roles of trial and appellate courts, with trial courts being responsible for making factual findings and appellate courts being responsible for reviewing trial decisions for errors: Barendregt, at para. 40.
[22] Barendregt also addresses the differences between “new” evidence on appeal, as opposed to “fresh” evidence. Evidence is “new” if it pertains to facts that occurred after trial; evidence is “fresh” when it occurred before trial but, for some reason, could not be put before the lower court: Barendregt, at para. 48. However, all four requirements set out above apply to additional evidence tendered on appeal, regardless of whether it is fresh or new: Barendregt, at paras. 34, 55.
B. Analysis
[23] I have concluded that the proposed evidence does not meet the fourth requirement and, accordingly, I would not admit it. Before giving my reasons for so concluding, I will briefly address the first three requirements.
i. The first requirement
[24] The first requirement is that the proposed evidence could not, with the exercise of due diligence, have been obtained for the lower court. In this appeal, neither the Report nor the Affidavit were in existence at the time of the proceedings below. Nonetheless, as Barendregt explains, the due diligence requirement is “sufficiently flexible” to adapt to concerns raised by evidence arising after trial: at para. 58. However, to find the first requirement satisfied simply because the evidence was not in existence at the time of the lower court proceeding would do away with the due diligence requirement. Instead, the first requirement requires the court to consider the conduct of the litigant seeking to adduce the proposed evidence. The court must determine whether that party could – with due diligence – have acted in a way that would have rendered the evidence available for trial: Barendregt, at paras. 56-61.
[25] In this case, when considering the first requirement, it is useful to consider whether the proposed evidence is new or fresh. The Report is new, in my view, for two reasons. First, it was published in 2025, after the Motion and appeal to the Divisional Court were decided. Second, it was based on a study that was conducted from late January to early April 2025 and covered incidents taking place specifically between October 2023 and January 2025. Neither the Report nor the information it contains could have been available earlier in this proceeding with the exercise of due diligence. Therefore, in my view, the due diligence requirement is met with respect to the Report.
[26] Determining whether the due diligence requirement is met in respect of the Affidavit is not as straightforward. Consider, for example, the affiant’s opinion that “antisemitism faced by children in public schools has worsened substantially since 2000, with the most dramatic change being the period post-October 7, 2023”. Given the lengthy period between 2000 and the bringing of the Application, the affiant’s reference to worsening circumstances since 2000 suggests that evidence supporting that opinion could, with due diligence, have been obtained and put before the motion judge. This consideration weighs against the admission of at least some of the additional evidence. However, the affiant’s reference – in the same sentence – to the “most dramatic change” having arisen in the period between October 2023 and January 2025, shifts the calculus in favour of admitting the proposed evidence, including the Affidavit, because again that information could not have, with due diligence, been put before the court in the earlier proceedings.
[27] Thus, the question becomes, how is the court to decide whether to admit proposed additional evidence that appears to consist of both fresh and new evidence? Even accepting that the due diligence requirement is met, such a determination is unnecessary because of my conclusion that the Appellants’ motion to adduce fresh evidence is best decided on the fourth requirement. I leave a deeper exploration of how to treat evidence that consists of both fresh and new for a case in which that determination is critical.
ii. The second requirement
[28] To satisfy the second requirement, the proposed evidence must be relevant, in that it “bears upon” a decisive or potentially decisive issue. One of the decisive issues in this appeal is whether the evidence on the Application has a reasonable prospect of satisfying the second prong of the Bedford/Carter test. To do so, that evidence must establish a change in circumstances that fundamentally shifts the parameters of the debate in Adler. The proposed evidence does bear on whether there has been a change in circumstances from those in Adler. However, as I explain in my analysis of the fourth requirement, the proposed evidence does not have a reasonable prospect of fundamentally shifting the parameters of the debate in Adler.
iii. The third requirement
[29] To satisfy the third requirement, the proposed evidence must be “credible”, in the sense it is reasonably capable of belief. In my view, it is unquestionable that the proposed evidence is credible. The author of the Report is a distinguished expert on antisemitism in Canada. Furthermore, the commissioned study was conducted under the purview of the Government of Canada (Department of Canadian Heritage, Ministry of Canadian Identity and Culture).
iv. The fourth requirement
[30] The fourth requirement for admission of additional evidence is that, if believed, the proposed evidence could have affected the result in the lower court. In my view, the proposed evidence does not satisfy this requirement.
[31] The primary factual circumstance in Adler was the threat to the long-term survival of the Jewish community. While the proposed evidence offers further insight into the challenges to the long-term survival of the Jewish community, that additional insight does not amount to a change in circumstance that has a reasonable prospect of “fundamentally shift[ing] the parameters of the debate”. Therefore, if admitted, the proposed evidence could not be expected to have affected the result below. Accordingly, the proposed evidence does not satisfy the fourth requirement for the admission of additional evidence.
[32] For essentially the same reason, I do not accept the Appellants’ assertion that the Divisional Court decision is predicated on it having concluded that the circumstances raised in the Application “replicated” those in Adler. In making that statement, I understand the Divisional Court to simply be saying that the evidence adduced on the Application was similar in nature to that which was before the Supreme Court in Adler and, therefore, did not have a reasonable prospect of fundamentally shifting the parameters of the debate. . Afolabi v. Law Society of Ontario [fresh versus 'new' evidence]
In Afolabi v. Law Society of Ontario (Ont CA, 2025) the Ontario Court of Appeal allowed an LSO appeal, this from numerous partly successful JR applications relating to suspected lawyer-licensing examination cheating:
Here the court considers the test for admitting additional evidence on an appeal, and the difference between 'fresh' and 'new' evidence [at para 52]:The Test for Admission of Fresh/New Evidence on Appeal
[50] Appellate courts have the discretion to admit additional evidence to supplement the record on appeal where the evidence: (1) could not, by the exercise of due diligence, have been available at the first instance hearing; (2) is relevant, in that it bears on a decisive or potentially decisive issue; (3) is credible, in the sense that it is reasonably capable of belief; (4) if believed, could have affected the result below: Barendregt v. Grebliunas, 2022 SCC 22, [2022] 1 S.C.R. 517, at para. 29, applying Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.
[51] The same test applies to evidence tendered on appeal in both civil and criminal cases: Barendregt, at para. 34. However, the first criterion will not be applied as strictly in criminal cases: Barendregt, at para. 29.
The Test Applied
[52] I begin by noting that the proposed evidence is “new”, rather than “fresh”. I do so because the evidence relating to the Divisional Court’s handling of costs submissions occurred after the Applications were heard. In Barendregt, at para. 48, the Supreme Court distinguishes “new” evidence from “fresh” evidence based on when the facts arose. Evidence is “new” if it pertains to facts that occurred after the first instance hearing was concluded whereas evidence is “fresh” when it pertains to facts that occurred before the first instance hearing. The Palmer test for admission applies to both new and fresh evidence, however, the application of the criteria differs somewhat depending on whether the proposed evidence is new or fresh: Barendregt, at paras. 53-57.
[53] In terms of the first criterion, because the proposed evidence arose after the hearing of the Applications, the question is whether the LSO could – with due diligence – have acted in a way that would have rendered the evidence available on the Applications: Barendregt, at para. 59. Proposed resolutions are akin to settlement offers. Accordingly, the LSO could not have adduced evidence of its proposed resolutions before the hearing of the Applications had been concluded and the Divisional Court had rendered its decision. The LSO acted promptly on receiving the Divisional Court reasons, by writing to the Registrar of the Court and asking that the parties be permitted to make costs submissions – which would have included the fact of the proposed resolutions – before the Divisional Court was functus officio. Thus, the first criterion is satisfied.
[54] Self-evidently, the second, third, and fourth criteria are satisfied, as the new evidence:i. is relevant - because it bears on the costs issue and the validity of the process the Divisional Court followed in making the Costs Orders;
ii. is credible – as it was sworn by co-counsel for the LSO on the Applications and is reasonably capable of belief; and
iii. if believed, could have affected the Costs Orders. [55] Accordingly, I would grant the Motion and admit the new evidence. . Barendregt v. Grebliunas
In Barendregt v. Grebliunas (SCC, 2022) the Supreme Court of Canada considered and re-affirmed the long-standing Palmer v The Queen (SCC, 1980) test [paras 29-47], holding it to be broad enough to apply to the situation of truly 'new' evidence (evidence pertaining to events that arise after trial) [paras 48-64, quoted below]. The thrust of the court is to focus on the 'conduct of the parties' that may effect the timing of the availability of the evidence [paras 58-61].
Coming in 2022, this is the latest Palmer fresh evidence re-consideration and should be read by anyone with a fresh (evidence existing at trial) - or new (evidence arising after trial) - evidence case:[2] The Court must first determine the test that applies to the admission of additional evidence on appeal. The Court is asked to decide whether a legal distinction should be drawn between admitting “fresh evidence” (concerning events that occurred before trial) and “new evidence” (concerning events that occurred after trial).
[3] In my view, the test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, applies whenever a party seeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relates to facts that occurred before or after trial. Appellate courts must apply the Palmer criteria to determine whether finality and order in the administration of justice must yield in service of a just outcome. The overarching consideration is the interests of justice, regardless of when the evidence, or fact, came into existence.
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(2) The Palmer Test Applies to Evidence of Facts that Arise After Trial
[48] The primary issue in this appeal is whether and how the Palmer test applies to “new” evidence. According to the Court of Appeal, evidence is “new” if it pertains to facts that occurred after trial; “fresh” evidence pertains to facts that occurred before trial, but which, for one reason or another, could not be put before the court.
[49] Appellate courts across the country have differed in their approaches to “new” evidence. Some have applied the Palmer criteria (J.W.S. v. C.J.S., 2019 ABCA 153, at para. 37 (CanLII); Sheikh (Re), 2019 ONCA 692, at para. 7 (CanLII); Riel v. Riel, 2017 SKCA 74, 99 R.F.L. (7th) 367, at para. 16; Hellberg v. Netherclift, 2017 BCCA 363, 2 B.C.L.R. (6th) 126, at paras. 53‑54), while others have applied a different or modified test (North Vancouver (District) v. Lunde (1998), 1998 CanLII 4205 (BC CA), 60 B.C.L.R. (3d) 201 (C.A.), at paras. 25‑26; Jens v. Jens, 2008 BCCA 392, 300 D.L.R. (4th) 136, at paras. 24‑29; Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5, at paras. 159‑61 and 166 (CanLII); Miller v. White, 2018 PECA 11, 10 R.F.L. (8th) 251, at para. 19; Beauchamp v. Beauchamp, 2021 SKCA 148, at para. 36 (CanLII)).
[50] This dissonance in the jurisprudence reflects two apparent paradoxes that arise in applying the first and fourth Palmer criteria to “new” evidence. Courts have queried whether new evidence could ever fail the due diligence criterion, since it relates to facts not yet in existence at the time of trial: see Cory v. Marsh (1993), 1993 CanLII 1150 (BC CA), 77 B.C.L.R. (2d) 248 (C.A.), at paras. 21 and 28‑29; J.M.F., at para. 21. Others have asked how such evidence could possibly have affected a trial outcome that it postdated: North Vancouver (District), at para. 25; Radcliff v. Radcliff (2000), 2000 CanLII 3720 (ON CA), 7 R.F.L. (5th) 425 (Ont. C.A.), at para. 10; Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.), at p. 211.
[51] In the face of conflicting British Columbia case law, the Court of Appeal concluded that the Palmer test only applies to fresh evidence, and the due diligence criterion did not strictly govern the admission of new evidence. It outlined the following test:... depending on the circumstances, new evidence may be admitted if it establishes that a premise or underpinning or understanding of the trial judge that was significant or fundamental or pivotal has been undermined or altered. [para. 43] [52] The mother takes issue with the Court of Appeal’s approach: she submits that the Palmer criteria apply to both fresh and new evidence. The father argues that the test applied below was appropriate because the new evidence “falsified” the trial decision.
[53] I conclude that the Court of Appeal erred by applying a different test to “new” evidence.
[54] Applying a different test for admitting new evidence — which dispensed with the due diligence criterion — failed to safeguard the delicate balance between finality and order, and the interest in a just result. It is also inconsistent with this Court’s Palmer jurisprudence. Indeed, this Court has consistently applied Palmer to evidence pertaining to events that occurred between the trial and appeal: see, for example, Catholic Children’s Aid Society, at p. 188; R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 50-51; Sipos, at paras. 29-30. The evidence in Palmer concerned facts that occurred both before and after trial and thus included both “fresh” and “new” evidence. The additional evidence included sworn declarations made by one of the key trial witnesses who recanted his testimony after trial, declaring that the RCMP promised him money before trial and made the payment after trial.
[55] The Palmer test is sufficiently flexible to deal with both types of evidence. As I will explain, the core inquiries under all four criteria remain the same regardless of when the evidence, or the specific fact, came into existence. Because the same test applies, it is unnecessary to distinguish between “fresh” and “new” evidence. Palmer applies to the admission of all additional evidence tendered on appeal for the purpose of reviewing the decision below.
(a) The Due Diligence Criterion
[56] A common thread running through the parties’ submissions and the Court of Appeal’s decision is that conceptual difficulties arise when applying the due diligence criterion to evidence about facts arising after trial. The mother accepts that due diligence should be eased in instances where it was impossible to adduce the evidence at trial. For the father, it is “by definition . . . not an appropriate consideration” in such cases: R.F., at para. 75. Similarly, the Court of Appeal decided that the due diligence criterion does not strictly govern the admission of new evidence.
[57] But under such a formalistic approach, the timing of events — and not the litigant’s conduct — would dictate the application of the due diligence criterion. For events occurring subsequently, the criterion would effectively be eliminated. This would run counter to our jurisprudence, ignore the litigant’s conduct and would fail to safeguard finality and order within the Palmer test. That is precisely what happened in this case. Focusing exclusively on whether the decision would be different gives undue weight to the interest in reaching a just result — and distorts the delicate balance that the Palmer test seeks to maintain.
[58] The due diligence criterion is sufficiently flexible to adapt to any unique concerns raised by evidence of facts that occurred subsequent to trial. As this Court held in Bent v. Platnick, 2020 SCC 23, at para. 60, the due diligence criterion is not a rigid one and has been held to be a practical concept that is context-sensitive.
[59] Ultimately, this criterion seeks to determine whether the party could — with due diligence — have acted in a way that would have rendered the evidence available for trial. The due diligence inquiry should focus on the conduct of the party seeking to adduce such evidence rather than on the evidence itself. And in doing so, a court should determine, quite simply, why the evidence was not available at the trial: G.D.B., at para. 20.
[60] The reason why “new” evidence was unavailable for trial may have its roots in the parties’ pre-trial conduct. For facts arising after trial, courts should consider whether the party’s conduct could have influenced the timing of the fact they seek to prove. Consider this case. If finances are at issue and a party does not take steps to obtain a financing commitment until after trial, the court may ask why the evidence could not have been obtained for trial. Parties cannot benefit from their own inaction when the existence of those facts was partially or entirely within their control. Again, litigants must put their best foot forward at trial. In the end, what matters is that this criterion properly safeguards finality and order in our judicial process.
[61] In sum, the focus of the due diligence criterion is on the litigant’s conduct in the particular context of the case. Considering whether the evidence could have been available for trial with the exercise of due diligence is tantamount to the requirement that the evidence could not, with the exercise of due diligence, have been obtained for trial. Where a party seeks to adduce additional evidence on appeal, yet failed to act with due diligence, the Palmer test will generally foreclose admission.
(b) The Other Palmer Criteria
[62] There is no suggestion by the parties that the remaining Palmer criteria should operate differently depending on when the fact the evidence seeks to prove occurred. Needless to say, the evidence must be relevant and credible regardless of when it arose. The interest in reaching a just result requires nothing less.
[63] As for the fourth factor — whether the evidence, if believed, could have affected the result at trial — the logic remains the same: a court must approach this criterion purposively. While it is tempting to conclude that evidence of facts arising after trial could never have affected the result at trial, the inquiry is not so narrow. The question is not the evidence’s timing but whether the evidence is sufficiently probative of the trial issues, had it been available. An overly formalistic approach at this stage ignores the underlying rationale of the Palmer criteria — here, the interest in reaching a just result in the context of the proceedings.
[64] As noted in Palmer, at p. 776, the fourth criterion will be satisfied if the evidence, assuming it was presented to the trier of fact and believed, possesses such strength or probative force that it might, taken with the other evidence adduced, have affected the result.
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(4) The Use of Properly Admitted Evidence on Appeal
[81] As a final observation, even when evidence is properly admitted on appeal, appellate courts must defer to the trial judge’s factual findings that are unaffected by the additional evidence. While assessing the proper outcome in light of additional evidence may require a global consideration of the case (St-Cloud; Gordon), appellate courts are not entitled to reweigh or disregard the trial judge’s underlying factual findings absent palpable and overriding error. . Krieser v. Garber
In Krieser v. Garber (Ont CA, 2020) the Court of Appeal considered a distinction between 'fresh evidence' and 'newly-arising evidence' [these extracts give some of the reasoning, but readers involved with such a case may want to consider it more thoroughly at the link]:[51] Section 134(4) of the Courts of Justice Act, R.S.O. 1990, c. C.43 gives this court discretion to receive further evidence on appeal “in a proper case”. Normally, the court will exercise its discretion to receive further evidence on appeal when (1) the tendered evidence is credible; (2) it could not have been obtained by the exercise of reasonable diligence prior to trial; and (3) the evidence, if admitted, will likely be conclusive of an issue in the appeal: Sengmueller v. Sengmueller (1994), 1994 CanLII 8711 (ON CA), 111 D.L.R. (4th) 19 (Ont. C.A.), at p. 23.
[52] Nealon submits that the proposed evidence is not “fresh evidence” in the classic sense, because it did not exist at the time of trial; rather, it is “new” evidence of subsequent developments that would not have been generated but for the mandatory injunction ordered by the trial judge. Thus, the second normal requirement for the admission of fresh evidence—that the evidence could not have been obtained by the exercise of reasonable diligence prior to trial—is inapplicable.
[53] In such as case, the evidence will be admitted where (1) it is required to deal fairly with issues on appeal and (2) declining to admit the evidence could lead to a substantial injustice: Sengmueller, at p. 23. Nealon argues that the new evidence shows that what the trial judge assumed about future events—namely that a permit would be obtained—is incorrect and is required to deal fairly with issues on appeal. Further, Nealon argues that trial judge’s assumption underpinned the judge’s orders granting the mandatory injunction, punitive damages, and costs. Accordingly, Nealon submits, this is a proper case to admit the proposed further evidence.
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[62] I am not persuaded that this is a proper case for this court to receive further evidence on appeal.
[63] Nealon testified at trial about the need for a permit, his close relationship with the MNRF, his successful track-record in obtaining permits and that he could probably obtain a permit to remove the dock.
[64] As McKinlay J.A. noted in Sengmueller, admitting evidence on appeal which did not exist at trial could not possibly have affected the result at trial. It results in their being no finality to the trial process. Such evidence should be admitted only “where it is necessary to deal fairly with the issues on appeal, and where to decline to admit the evidence would lead to a substantial injustice in result”: Sengmueller, at p. 23.
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