The issue in this case was the procedure involved in an Appeal to a Justice of a Master’s Decision. The Appellant sought to introduce fresh evidence on Appeal to the Justice. The Appellant proposed that the hearing of the Appeal itself should deal with the whether the new evidence was admissible. The Respondent submitted that the Rules require that the admissibility of the evidence be determined prior to the hearing of the Appeal.

Kenny J. determined that a literal reading of Rule 6.14 would require a two-step process: new evidence sought to be filed and relied upon at the Appeal could only be filed after it was determined whether it complied with the limitation set out in subrule (3). In other words, the literal reading would require a rather ineffectual process: first, a Judge would have to review all the material to decide if the new evidence met the test set out in the rule; second, another Judge would decide the Appeal. Kenny J. determined that this could not have been what was intended by the Rule: a two-step process was not contemplated by the new Rule. New evidence is to be filed and served along with the rest of the material and it will be up to a Justice hearing the Appeal to determine if it meets the test set out in Rule 6.14(3). Kenny J. considered the dilemma facing the party that receives the fresh evidence prior to the Appeal: should it Cross Examine on the new evidence prior to Appeal, thereby perhaps conceding that the new evidence would be relevant or admitted by the Justice at the Appeal? Or should it wait for the Appeal then seek an adjournment? Her ladyship did not foresee that the obtaining of an adjournment to address the new evidence would be very difficult.