The Applicant applied for an extension of time to file an Application to admit new evidence on an Appeal (the “Application”). Feehan J.A. considered the Application under Rule 14.45(1) and ordered it be dismissed.

Feehan J .A. commented that although the current Rule does not expressly require a party to obtain leave to apply to introduce new evidence if such an Application had not been made before the party’s factum was due, the Court still requires Applications for permission to file late new evidence. Relevant considerations include: 1) the reason for the late filing, 2) the effect of the late filing on the Appeal, and 3) whether the Application for new evidence has a reasonable prospect of success or is prima facie meritorious (the “Criteria”).

Having considered the Criteria, Feehan J.A. held that although the threshold for granting an extension of time to apply for leave to admit new evidence is low, the Application did not meet that threshold, and therefore should be dismissed. Specifically, the video proposed to be admitted as new evidence had been available since September 2020, and known to the Applicant since late 2020 or early 2021. The Applicant failed to provide an explanation for the lateness of the Application to admit that video into evidence. Further, it did not appear the video could have any relevant impact on the Appeal by the Applicant being heard next week. A potential Application to admit new evidence would have no reasonable prospect of success nor was it prima facie meritorious.