The Applicant sought leave to file a late Application to admit additional evidence on Appeal consisting of documents that he submitted would have changed the Decision in first instance.

Under Rule 14.45(1), an Application to admit new evidence on Appeal must be filed and served prior to the Applicant’s Factum being filed. An Applicant seeking to file a late Application to admit such evidence must seek permission to file.

Fagnan J.A. applied the four-part test from Palmer v The Queen, [1980] 1 SCR 759 for leave to file a late Application to admit new evidence under Rule 14.45(1). Specifically, the evidence generally should not be admitted if it could have been obtained for the hearing through due diligence. The evidence must be relevant in the sense that it relates to a potentially decisive issue in the Trial and must be reasonably capable of belief. Finally, it must be such that it could have reasonably affected the result of the hearing. The Court must also consider whether the proposed Application has a reasonable prospect of success.

Fagnan J.A. observed that the threshold for granting leave is low, and took note that the Court has denied leave where the proposed additional evidence was only marginally relevant or material, where it was irrelevant, and where it was not even arguably probative. Fagnan J.A. further held that although due diligence is not a condition precedent, failure to act with due diligence will generally foreclose the admission of fresh evidence on Appeal.

Having found that the Applicant’s written Application contained only a bare assertion that the evidence was relevant and probative without explaining its particulars or the impact it could be expected to have, Fagnan J.A. denied the Application.