Appeals - Newly-Arising 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:
 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).. Krieser v. Garber
 In my view, the test in Palmer v. The Queen, 1979 CanLII 8 (SCC),  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.
(2) The Palmer Test Applies to Evidence of Facts that Arise After Trial
 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.
 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)).
 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.
 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] 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.
 I conclude that the Court of Appeal erred by applying a different test to “new” evidence.
 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,  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.
 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
 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.
 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.
 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.
 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.
 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.
 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
 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.
 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.
 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.
(4) The Use of Properly Admitted Evidence on Appeal
 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.
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]:
 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.
 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.
 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.
 I am not persuaded that this is a proper case for this court to receive further evidence on appeal.
 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.
 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.