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Federal Court - Fresh Evidence. Hudson v. Canada
In Hudson v. Canada (Fed CA, 2024) the Federal Court of Appeal considers an appeal motion for fresh evidence, and in so doing draws a distinction between fresh evidence and the inclusion of documents in the appeal book:[1] In the present appeal from a judgment of the Tax Court of Canada, the appellant moves for an Order that:1. The Court grant the appellant leave to adduce fresh evidence pursuant to Rule 351 of the Federal Courts Rules, S.O.R./98-106, as follows: ... ....
II. Fresh Evidence
[6] The parties agree that a party seeking to adduce fresh evidence must establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in the sense that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below; and that, if the evidence fails to meet the foregoing criteria, the Court still possesses a residual discretion to admit the evidence on appeal, though such discretion should be exercised sparingly and only in the clearest of cases, where the interests of justice so require (see Coady v. Canada (Royal Mounted Police), 2019 FCA 102 at para. 3).
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[10] I agree with the respondent that fresh evidence pursuant to Rule 351 should not be allowed. The appellant was aware of the importance of the tax returns and Dr. Raynor’s letters and has not convinced me that she exercised due diligence in introducing them into evidence. She points to a trial exhibit as evidence of Dr. Raynor’s vacation, but she does not point to any exchange with the Tax Court in which she asserted the necessity of relying on Dr. Raynor’s letters as hearsay evidence because of her unavailability. The appellant also does not adequately document her allegation that the Tax Court initially indicated that she could introduce Dr. Raynor’s letters through her testimony. Finally, I am also not convinced by the appellant’s bald allegation that she could not have introduced the B.C. Minister of Finance document as evidence at trial with the exercise of due diligence.
[11] Nevertheless, the appellant alleges in her notice of appeal that the Tax Court erred in refusing to accept at least the tax documents and Dr. Raynor’s letters as evidence. In order for this Court to be in a position to determine whether the Tax Court erred in this respect, it will be necessary to have reference to these documents. Therefore, though they will not be accepted as fresh evidence, they should be included in the appeal book. . Salt River First Nation #195 v. Tk'emlúps te Secwépemc First Nation
In Salt River First Nation #195 v. Tk'emlúps te Secwépemc First Nation (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal against two decisions against a First Nation in a residential schools system class action proceeding, the first a motion to intervene and the second to be added as a class to the action.
Here the federal court considered the law of fresh evidence:[29] The test for fresh evidence on appeal was set out in Bell Canada v. Adwokat, 2023 FCA 106, 2023 CarswellNat 1503 at para. 4 [Adwokat]: it must be established that the evidence "“(1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the [C]ourt below.”" Even where these criteria are not met, a court has limited residual discretion to admit new evidence on appeal where the interests of justice require it (Adwokat at para. 4).
[30] Regarding the parties’ due diligence, this criterion is obviously met for the evidence that only came into existence after the motion. However, it is also satisfied for the other evidence, which existed at the time of the motion but which was not before the Federal Court due to the Court choosing, of its own initiative, to decide the matter early and on the basis of Salt River’s materials only. The due diligence criterion is not solely temporal—rather, it focuses on the conduct of the parties (Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1 at para. 59). Both parties here acted with due diligence in preparing and submitting their materials, but were cut off at the pass, so to speak. Therefore, under the unique circumstances of this case, the evidence could not have been adduced in the Court below with the exercise of due diligence.
[31] The proposed fresh evidence is relevant and credible: it is relevant to the issues of adequacy of notice, Salt River’s reasons for missing the opt-in deadline, and the issue of mootness. Nor is there any reason to doubt its credibility: the evidence is uncontroversial and mostly supported by documentation.
[32] The final criterion—whether the evidence would have affected the result in the Court below—presents difficulties. The Gottfriedson respondents seek to admit evidence that they say only reinforces the decision below, or that speaks to what the judge can be assumed to have known when she reached the conclusion that she was "“satisfied”" that notice had been sent to Salt River. Salt River, in contrast, seeks to contextualize the Gottfriedson respondents’ evidence. In my view, the evidence submitted could conceivably have affected the outcome below.
[33] Based on the above analysis, the evidence can be admitted under both the traditional test, as well as the broader interests of justice test. It is sufficient to say that the Adwokat criteria have been met, but it is also in the interests of justice that this Court has a full record before it. Salt River’s fresh evidence is directly responsive to that of the Gottfriedson respondents and the motions were not opposed by either party. I would allow both motions to adduce fresh evidence. . Terra Reproductions Inc. v. Canada (Attorney General)
In Terra Reproductions Inc. v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered fresh evidence on a JR:[5] In support of its application, the applicant filed an affidavit containing evidence that was not before the Tribunal. New evidence is not admissible before a reviewing court unless certain narrow exceptions apply: Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 F.T.R. 297; Bernard v. Canada (Revenue Agency), 2015 FCA 263, 9 Admin. L.R. (6th) 296; Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128; and many other authorities. None of the exceptions apply on the facts of this case. . Bell Canada v. Adwokat
In Bell Canada v. Adwokat (Fed CA, 2023) the Federal Court of Appeal considers (and denies) it's discretion to admit fresh evidence, including it's reasons:I. The Motion to Adduce Additional Evidence
[4] As concerns the motion, the test for allowing fresh evidence on appeal is well settled and requires the party seeking to file such evidence to establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below. An appellate court maintains a residual discretion to admit new evidence on appeal where these criteria are not met. However, such discretion should be exercised sparingly and only in the clearest of cases where the interests of justice so require (Coady v. Canada (Royal Mounted Police), 2019 FCA 102, 304 A.C.W.S. (3d) 869 at para. 3 and cases cited therein).
[5] The first of the foregoing criteria, as noted by the majority of the Supreme Court of Canada recently in Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1 [Barendregt] at paragraph 36 "“… focuses on the conduct of the party seeking to adduce the evidence. It requires litigants to take all reasonable steps to present their best case at trial. This ensures finality and order in the judicial process [citations omitted]”".
[6] Here, the fresh evidence that the appellants seek to tender could have been adduced before the Federal Court had they been more diligent in their quest for it. The key components of the fresh evidence are the banking records for the two bank accounts of the respondent, Red Rhino Entertainment Inc. (Red Rhino), which suggest that, once the respondent was aware of the Federal Court’s injunction, Red Rhino may well have made sales in violation of the injunction that generated gross revenues equal to at least $600,000.00. Although the appellants wrote several times to the trustee in bankruptcy of the respondent to request production of the bank statements of Red Rhino, they took no other steps to obtain them.
[7] It was open to the appellants to have obtained the banking records of Red Rhino via proceedings that were available under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the BIA). More specifically, the appellants could have sought an order to examine Mr. Adwokat, the sole director of Red Rhino, under subsection 163(2) of the BIA or could have sought production from the T.D. Bank, where the accounts were held, if they had obtained an order under section 38 of the BIA. Indeed, the trustee in bankruptcy of the respondents told the appellants that, in his opinion, one of these alternative avenues was more likely to be successful.
[8] In addition, Mr. Adwokat filed an affidavit on the sentencing motion. He could have been cross-examined about his and Red Rhino’s assets and earnings and could have been asked to produce all relevant banking records during the cross-examination. If necessary, an adjournment could have been sought to facilitate production or to seek an order requiring it. However, the appellants pursued none of these avenues.
[9] It rather appears that the appellants perhaps made a tactical choice to refrain from making further efforts to seek the banking records for Red Rhino, as the respondents submit. In this regard, the appellants argued during the sentencing hearing that the respondents’ failure to disclose the banking records to the trustee in bankruptcy was an aggravating factor, meriting a more severe sentence.
[10] The appellants, accordingly, have failed to meet the test for acceptance of the fresh evidence because they have failed to establish the first of the prerequisites for its admission since they were not duly diligent in its pursuit.
[11] In the circumstances, I am not convinced that this is an appropriate case to exercise our exceptional discretion to admit the fresh evidence that the appellants seek to tender. As noted at paragraphs 70-72 of Barendregt, it is only in rare and exceptional circumstances, where the interests of justice so require, that an appellate court should exercise its discretion to admit evidence that could have been tendered in the court below if the party seeking to adduce it had been duly diligent. In my view, there are no rare and exceptional circumstances in this case that would warrant the exercise of discretion.
[12] I would accordingly dismiss the appellants’ motion, with costs. . Mackie v. Teamsters Canada Rail Conference
In Mackie v. Teamsters Canada Rail Conference (Fed CA, 2022) the Federal Court of Appeal considered a fresh evidence argument by the applicant, though in the context of the respondent's motion to dismiss portions of a filed affidavit in a JR case [SS: Keeprite]:[6] For his part, the applicant acknowledges that some portions of his evidence were not before the CIRB when it rendered its impugned decision, but he argues that such evidence should nevertheless not be struck. The gist of his argument is that the evidence in question is relevant to the issues in dispute and should be considered. He cites the decision of the Supreme Court of Canada in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at page 775, 106 D.L.R. (3d) 212 (Palmer), to support his argument that additional evidence may be admitted based on the following principles:(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 CanLII 43 (SCC), [1964] S.C.R. 484, 46 D.L.R. (2d) 372].
(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 evi-dence adduced at trial, be expected to have affected the result. [7] It is important to note, however, that Palmer concerned an appeal of criminal convictions under the Criminal Code, R.S.C. 1985, c. C-46. Palmer does not apply in the circumstances of the present judicial review. Also, the provision in issue in Palmer specifically contemplated new evidence. In the present case, Parliament has assigned to the CIRB the task of assessing the merits of the applicant’s DFR complaint. It is not the role of this Court on judicial review to redo that work. Moreover, there is no provision in the legislation applicable in this case for the introduction of new evidence.
[8] The same distinction applies in respect of the applicant’s reliance on the decision of the Court of Appeal for Ontario in Sengmueller v. Sengmueller, 1994 CanLII 8711, [1994] O.J. No. 276 (Q.L.). That decision admitted new evidence on the basis of fairness, but in the context of an appeal, not a judicial review. Again, the legislation explicitly contemplated the introduction of new evidence. . Sibbald v. Canada (Attorney General)
In Sibbald v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal held that the fresh evidence admissibility rules that applied to a federal judicial review of the Social Security Tribunal (Appeal Division), apply to the tribunal proceeding as well:[35] At paragraph 13 of Gittens v. Canada (Attorney General), 2019 FCA 256, 311 A.C.W.S. (3d) 211, this Court has held that "“hearings before the Appeal Division are not redos based on updated evidence of the hearings before the General Division. They are instead reviews of General Division decisions based on the same evidence”".
[36] The general rule regarding the admissibility of evidence on judicial review was explained by this Court at paragraph 19 of Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 NR 297 [Access Copyright] which reads as follows:... the evidentiary record before this Court on judicial review is restricted to the evidentiary record that was before the Board. In other words, evidence that was not before the Board and that goes to the merits of the matter before the Board is not admissible in an application for judicial review in this Court. [37] In Access Copyright, this Court enumerated three, potentially non-exhaustive, exceptions to the general rule: (1) general background information, (2) to bring procedural defects to the attention of the court, and (3) to highlight the complete absence of evidence. The Court also highlighted that these exceptions "“exist only in situations where the receipt of evidence by this Court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker”" (Access Copyright at para. 20).
[38] Access Copyright was relied upon in Sharma v. Canada (Attorney General), 2018 FCA 48, 288 A.C.W.S. (3d) 790 at paragraph 9 [Sharma]. However, in Sharma, the question was whether this Court, not whether the Appeal Division, should consider new evidence.
[39] When determining whether fresh evidence should be admitted before it, the Appeal Division should be guided by the same principles enumerated in Access Copyright. The Appeal Division is not the fact-finder. That is the role of the General Division. There may be circumstances when the Appeal Division would allow fresh evidence, if it assists in providing background information or, perhaps exceptionally, in cases where both parties have agreed that an important document should be considered. Determinations of this nature are case-specific and should be left to the Appeal Division.
[40] These principles are not new to the Appeal Division. I am aware of the Appeal Division having recently applied these principles to new evidence (see, for example, RK v. Canada Employment Insurance Commission, 2020 SST 1024; KD v. Minister of Employment and Social Development, 2020 SST 631 and HZ v. Minister of Employment and Social Development, 2020 SST 550).
[41] In the review before us, Mr. Sibbald does not agree that the Order should have been admitted and considered by the Appeal Division. He says that he was not allowed the opportunity to provide further evidence regarding the Order, the parenting arrangements and child support arrangements. He also argues that the new evidence does not provide general background information. Accordingly, he submits that allowing this fresh evidence was unfair and prejudicial to his position. I agree.
[42] The Order provided to the Appeal Division does not fall under the general background information exception and therefore should not have been admitted as evidence. . Iris Technologies Inc. v. Canada (National Revenue)
In Iris Technologies Inc. v. Canada (National Revenue) (Fed CA, 2020) the Federal Court of Appeal set out the criteria for fresh evidence on appeal:[27] The legal principles governing the admission of fresh evidence on appeal are not in dispute. A party seeking to adduce fresh evidence must establish that the evidence could not have been adduced at trial with the exercise of due diligence; is relevant in that it bears on a decisive or potentially decisive issue on appeal; is credible in the sense that it is reasonably capable of belief; and, if believed, could reasonably have affected the result in the court below (Palmer v. The Queen (1979), 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at 775, 106 D.L.R. (3d) 212; Coady v. Canada (Royal Mounted Police), 2019 FCA 102 at para. 3).
[28] Each of the four criteria must be met. If they are not met, the Court has residual discretion to admit the evidence, but it is a discretion to be exercised sparingly—in the "“clearest of cases”" where the interests of justice so require (Coady at para. 3). . Jack v. McLean
In Jack v. McLean (Fed CA, 2020) the Federal Court of Appeal set out the test for fresh evidence in a federal appeal:[10] The principles governing the admission of fresh evidence on appeal were set out at paragraph 3 of Coady v. Canada (Royal Mounted Police), 2019 FCA 102, which provides:The test governing such requests is well-established and requires that the party seeking to adduce fresh evidence establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in the sense that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775, (1979) 30 N.R. 181; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at para. 107. This test has been regularly applied by single judges of this Court when deciding motions seeking the admission of new evidence on appeal: see Shire Canada Inc. v. Apotex Inc., 2011 FCA 10 at para. 17, 414 N.R. 270 (Shire); Brace v. Canada, 2014 FCA 92 at para. 11, 68 C.P.C. (7th) 81 (Brace). If the evidence fails to meet the foregoing criteria, the Court still possesses a residual discretion to admit the evidence on appeal. However, such discretion should be exercised sparingly and only in the “clearest of cases”, where the interests of justice so require: Shire at para. 18; Brace at para. 12 . Canada v. Pomeroy Acquireco Ltd.
In Canada v. Pomeroy Acquireco Ltd. (Fed CA, 2020) the Federal Court of Appeal considered the fresh evidence on appeal under Federal Court Rules 351:[5] Because I find it better reflects the jurisprudence that binds this Court, I prefer the definition of the legal test for adducing fresh evidence as set out in Coady v. Canada (Royal Mounted Police), 2019 FCA 102 at para. 3 (Coady):[…] The test governing such requests is well-established and requires that the party seeking to adduce fresh evidence establish that the evidence: (1) could not have been adduced at trial with the exercise of due diligence; (2) is relevant in that it bears on a decisive or potentially decisive issue on appeal; (3) is credible in the sense that it is reasonably capable of belief; and (4) is such that, if believed, could reasonably have affected the result in the court below: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775, (1979) 30 N.R. 181; May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at para. 107. […] If the evidence fails to meet the foregoing criteria, the Court still possesses a residual discretion to admit the evidence on appeal. However, such discretion should be exercised sparingly and only in the “clearest of cases”, where the interests of justice so require[…] [6] The parties also both cite the following passage from Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1992] S.C.J. No. 110 at para. 6 (Amchem), concerning how the requirements should be applied on appeals of interlocutory matters, such as this appeal:[…] In my view, in exercising the discretionary power in respect of an application relating to an appeal from an interlocutory order, these rules should not be applied strictly. Regard must be had for the fact that there is not the same opportunity for putting forward all the material as at trial[…] . Landau v. Canada (Attorney General)
In Landau v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal declined to admit fresh evidence that could have been admitted in a lower appeal tribunal:[11] To the extent that fresh evidence is adduced in support of the challenges against sections 2(1), 42(1), 58, 72 and 73 of the Plan, it is inadmissible in this Court because the challenges are not available in this Court. To the extent the fresh evidence is adduced in support of the challenge against paragraphs 44(1)(a) and (d) and section 46 of the Plan, it is inadmissible on the ground that, absent a recognized exception, new evidence, even on constitutional issues, is not admissible in this Court: Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297, citing numerous cases and applied by many more; on new evidence offered on constitutional issues, see Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, [2015] 4 F.C.R. 75 at paras. 40-46. The General Division and the Appeal Division are the merits-deciders under this legislative scheme and, thus, normally only they may receive evidence and consider it: see, most recently, Portnov v. Canada (Attorney General), 2021 FCA 171, citing numerous cases that, in turn, cite many more.
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