The Defendants at Trial appealed the Trial Judge’s Decision regarding the formation and alleged breach of a purchase and sale agreement. The Respondents on Appeal sought to admit correspondence exchanged among counsel for both parties and the Trial Judge regarding calculations of damages flowing from the Judgment. Accordingly, the Respondents brought two related Applications: first, an Application pursuant to Rule 14.73 to permit the late filing of an Application to admit new evidence; and second, an Application pursuant to Rules 14.45 and 14.70 to admit such evidence.

The Court of Appeal allowed both of the Respondents’ Applications. In allowing the Application to permit late filing, the Court noted the Respondents’ argument that the Appellants would not be prejudiced by the late filing as they had received notice of the new evidence several months earlier. In allowing the related Application to admit new evidence, the Court applied the test set out in Santoro v Bank of Montreal, 2019 ABCA 322: 1) the evidence should not generally be admitted if, by due diligence, it could have been adduced at Trial; 2) the evidence must bear 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; and 3) the evidence, if believed, could reasonably, when taken with other evidence adduced at Trial, be expected to have affected the result.

Applying this test to the facts of the case, the Court found that: 1) the evidence could not have been admitted at Trial, as it originated after the conclusion thereof; 2) the evidence bore upon a decisive issue in the Trial, being damages; 3) the evidence, which was comprised of correspondence among both counsel and the Trial Judge, was credible; and 4) the evidence, which concerned the calculation of damages, could be expected to have affected the result. Accordingly, the evidence was admitted.

As a preliminary issue, the Court also applied Rule 14.49 which states that a Respondent who fails to respond to an Application may not present oral argument at the hearing of the Application unless the Court otherwise permits. The Appellants failed to respond to the Respondents’ Applications in writing and, as a result, counsel was not permitted to advance oral argument in respect of the Applications.