martin, mcdonald and veldhuis jja

14.45: Application to admit new evidence

Case Summary

The Appellant was a Plaintiff in an Action arising from an automobile accident. The Action was under the direction of Case Management and in May 2014, the Case Management Judge directed the Plaintiff to produce his witness list and comply with procedural requirements for Trial. In July 2014, the Plaintiff moved, but failed to file a change of address with the Court and subsequently failed to attend further Applications and Case Management meetings. When the Plaintiff failed to appear at a Case Management meeting in January 2015, the Court held him in contempt and the Statement of Claim was struck. This final Order was also served on the Plaintiff’s former address, but the Plaintiff became aware of the Order when it was also emailed to him.

The Plaintiff appealed the Order and both parties sought to adduce fresh evidence. The majority of the Court noted that the Plaintiff’s Factum did not clearly state his grounds of appeal, but noted that he appeared to argue that the Application documents for the Case Management hearing were served on him improperly at his former address. The Respondents submitted that the Appellant only raised the new address on Appeal. The Majority applied the four part test from R v Palmer, [1980] 1 SCR 759, when determining whether or not to admit fresh evidence. Under the Palmer test, the Court must consider first, whether the evidence could have been adduced at Trial if the parties exercised due diligence. Second, the evidence must be relevant to a decisive issue in the Trial. Third, the evidence must be credible and fourth, the evidence could reasonably be expected to have affected the result. The Court added that, in applying the Palmer test, they must consider whether the “proposed evidence is or would be admissible under any rules of law applicable to its nature, its source, its continuity”, and “its balance of probative force against prejudicial effect”.

The Majority noted that the Appellant had not complied with Rule 14.45 in that he did not file a Notice of Application before the Court to introduce the fresh evidence, nor did he provide an Affidavit attesting to compliance with the Palmer factors. Given these failings, the Court held that the Applicant’s fresh evidence failed the threshold requirement set out in Palmer. The Court then considered the Respondents’ Application to adduce fresh evidence of the Applicant’s “mischief” in presenting documents suggesting he had filed a change of address with the Court. The Majority held that this evidence met the Palmer requirements and clearly established that the Appellant’s evidence was either not provided at all prior to Appeal, or was altered to make it appear as though the Appellant provided his new address to the Court. The Majority added that being a self-represented litigant did not excuse the Appellant’s failure to comply with the Rules and the Appeal was dismissed.

In dissent, Martin J.A. focused on the Appellant being a self-represented litigant who could reasonably have expected to receive a significant award of damages. Martin J.A. opined that dismissing the Appellant’s claim in such circumstances was a significantly disproportionate consequence for failing to file a change of address with the Court. Martin J.A. would have allowed the Appeal on the basis that dismissal of the Action was excessively punitive.

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