Adding new evidence before the Court of Appeal which was not in the court or tribunal appealed from, is unusual. It requires special procedures. The Rules say so. See also the Stevenson & Cote Handbook, R.14.45 n.A. The Court has developed some additional practices and procedures on this topic. Sometimes the situation arises unexpectedly, at an awkward stage.
What are the procedures and practices?
Is new evidence permissible on appeal? Yes, but only with permission from the panel hearing the appeal. See Rr. 14.45 and 14.70.
The usual criteria for admitting new evidence are set by case law. The authorities are cited in the Handbook, R. 14.45 n.A., and in the Encyclopedia, Chap. 75, Part D.
The application for permission to admit further evidence can be filed and served as early as the appellant wishes. (A respondent can seek to adduce new evidence too, but for simplicity, throughout I will just refer to a request by the appellant.) The earlier that the respondent gets notice of some kind, the less likely it is that the respondent can either argue irreparable prejudice, or delay the appeal. The normal deadline for filing and serving the motion for permission for new evidence, is when the appellant's factum is filed or due. See R. 14.45(1). Practicality also dictates that. The court and the respondents need to know what significance the appellant thinks that the new evidence has, and precisely what new evidence is proposed. They also have to know that the appellant will seek such formal permission, and is not just trying to bypass that requirement. It is also helpful for the court and the respondents to know whether the appeal will proceed if the new evidence is not admitted, and if so, what the remaining arguments of the appellant will be.
Occasionally worthwhile new evidence comes to light later than that, but before oral argument of the appeal. Then the appellant would need a belated motion for permission, and for an extension of the time to apply. A party contemplating a late application should consult the Court of Appeal's case management officer. If such a time extension were granted, probably the appeal would have to be adjourned. For one thing, the factums would be incomplete.
The time deadline is fairly tight, and the amount of appellant's work involved is large. So any counsel consulted about a possible appeal should watch all along for possible new evidence and whether it might be admissible. That is true whether appellate counsel is new, or ran the trial also.
If it is possible that trial counsel may be accused of negligence, that counsel’s insurer should be notified and given a chance to comment. Such insurers sometimes provide able counsel experienced in salvaging bad legal results.
Ordinarily, the permission to admit fresh evidence cannot come from some other panel, such as a motions panel. It should come from the panel hearing the appeal, because the Supreme Court requires that the Court consider together the admission of the new evidence, and weighing the appeal. See R. v. Stolar  1 SCR 480, 491-92,  3 WWR 193, 201-02. (So the exception in R. 14.38(2)(b) is dangerous.) If a motions panel receives such a motion, it will likely just adjourn the motion to the panel hearing the appeal.
If the respondents wish to give their own evidence to contest the truth or completeness of the new evidence tendered, someone must decide that factual issue. Rarely will a panel of the Court of Appeal want to do that. In criminal appeals, the panel will often appoint a special commissioner (such as a retired judge). He or she will hear live evidence and report a factual conclusion to the panel. That evidence session and report usually occur after the first appeal hearing, which must be adjourned to await the report. But in appeals to Queen’s Bench, all the commissioner steps usually come before the Queen’s Bench Justice hears and decides the appeal. Such contests over the content of the new evidence are rare in civil cases.
Never try to put new evidence quietly into the appeal record, the extracts of evidence, the factum, or the book of authorities. Not even if that evidence was before either court on some occasion not the one appealed from. Such insertion of new evidence will not work: the Court of Appeal will strike it out or ignore it, and will be annoyed, and the appellant will look tricky. See the Handbook, Rr. 14.16(1) n.B, 14.25 n.E, 14.27n., 14.45 n. B, and 14.70n.
A motion to adduce new evidence needs evidence, usually by affidavit. That should show precisely what is the proposed new evidence. That affidavit or affidavits will cover both points: the judge-made tests for admitting new evidence, and the substance and truth of the new evidence. (If the motion is late, the affidavit(s) must also cover the criteria for extending time.) And that motion needs a separate written argument addressing those tests.
The Registrar will put the proposed new evidence into sealed envelopes (provided by the Appellant) as soon as it is filed. But the panel hearing the appeal will normally open their envelopes and read their contents before hearing oral argument. The envelope is a mere visual clue that the contents are not yet part of the record.
The respondents will have the usual rights to cross-examine on such affidavits, and to file a reply affidavit. Ordinarily counsel should try to get all that done before the hearing of the appeal.
Sometimes an affidavit for the motion for new evidence goes into privileged matters, such as why the evidence was not called by the appellant's lawyer in the court below, or competence of that lawyer. Then waiver of privilege arises. Such an affidavit may itself be held to waive privilege. And the respondent will probably ask for an express written waiver of privilege. It is usually forthcoming. If it is not, the respondent may argue against admission of the new evidence on the ground that it is selective and cannot be tested. This privilege issue is common where new evidence is tendered in a criminal appeal, and the express waiver of privilege is routine. Often counsel do not think about such privilege questions in civil appeals.
5. The Factums
Ordinarily factums are filed with or after the new-evidence motion, and with knowledge of the motion. The appellant should describe clearly what are his or her arguments in two situations: if the new evidence is accepted, and if it is rejected.
Usually the written arguments about whether or not the Court of Appeal should find that the new evidence meets the tests for new evidence, will be filed separately as part of the new evidence motion.
6. Oral Argument
The judges hearing the appeal will decide whether they want to hear the oral argument about whether to adduce the new evidence before it hears the argument of the appeal itself, or with it. Both plans have been followed on different occasions, and there are arguments both ways about which plan to follow. It may depend on the nature of the appeal and the nature of the new evidence. Counsel should be prepared to address that procedural issue. And counsel should certainly plan to address two versions of the appeal: with the new evidence, and without it. (As noted, so should their factums.) Obviously the appellant would like the new evidence heard. But if the Court decides not to hear it, will the appellant give up the appeal, or has he or she still got other viable arguments to support the appeal?
7. Result of the Appeal
On any appeal, each party should consider carefully whether the likely or the desirable result is a final verdict for the appellant, or a new trial or hearing in the original court or tribunal. A motion for new evidence makes that question even more important, but also more complex. If the appellant is content with a new trial, or one is likely, then attempts by the respondent to file new rebuttal evidence on appeal may be pointless. Maybe he or she should save them for the new hearing in the original court or tribunal.
In appeals from municipal Subdivision and Development Appeal Boards, fairly often both sides agree to have the appeal allowed and a new hearing held before the Board. In other types of appeal such an agreement is much rarer, but probably it should be considered more often. Such an agreement can save a very large amount of time and money.
If the new evidence seems incontrovertible but only affects a part of the judgment under appeal, such as calculation of some item or damages or interest or costs, maybe counsel should ask the Queen’s Bench judge to reopen the case to rehear the point, and avoid an appeal. Especially if a new hearing is what the Court of Appeal is likely to order anyway.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: email@example.com or phone 780-424-5345.