The Appellant applied to strike portions of the Respondent’s Factum pursuant to Rule 14.70 on the basis that the material included fresh evidence and that the Factum appended counsel’s submissions which were misstatements and were not in evidence. Justice Berger noted that Rule 14.70 provides that unless an Order is granted under Rule 14.45 permitting the reliance of new evidence, Appeals will be decided on the record before the Court appealed from. Further, Rule 14.45(1) provides that an Application to admit new evidence must be filed and served prior to the filing of the Applicant’s factum. Rule 14.26(3) provides that factums must contain precise references to the location, page numbers, and paragraph numbers or lines of the Appeal Record, extracts of key evidence, and authorities referred to. The Respondent’s position was that the chronology appended to the factum was simply there to aid the Court, and the submissions appended to the factum were specifically requested by the Judge in the Court below.

Berger J.A. determined that the paragraphs and appendices in the factum at issue were generally “procedural niceties” and that because the evidence that was stated in them was publically available and could be accessed through the Court record, the materials did not constitute fresh evidence, and that Rule 14.70 was not at issue. Berger J.A. dismissed the Appellant’s Application.