Admitting Fresh or New Evidence on Appeal

2011 FCA 10 · Federal Court of Appeal

Originally published on IncomeTaxAct.ca on 25 November 2014. The law may have changed since; check the current text in the tax wiki.

The FCA set out the test for admitting fresh evidence on Appeal, pursuant to Federal Court of Appeal Rule 351, by referring to the decision in Palmer v. The Queen, [1980] 1 S.C.R. 759; Shire Canada Inc. v . Apotex Inc., 2011 FCA 10. The test is:

(1) The evidence should not be admitted if, by due diligence, it could have been adduced at trial.

(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.

(4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The FCA stated that even if the Palmer test is not met, the court has residual discretion to admit the new evidence on appeal if doing so is in the interest of justice (para 12). The exercise of this residual discretion should, however, occur only in the clearest of cases and with great care: R. v. J.A.A., 2011 SCC 17.

• Sas Tullo, JD LLM PhD (exp)