Supreme Court clarifies the test that applies to admit additional evidence on appeal

On May 20, 2022, the Supreme Court of Canada released its decision in Barendregt v. Grebliunas, 2022 SCC 22, where it clarified the test that must be met to admit additional evidence on appeal.

The decision highlights the importance of working with skilled, experienced legal counsel to carry out thorough due diligence to collect, review, and submit evidence prior to trial.

Facts

Barendregt stems from a family law dispute that culminated in the trial judge awarding custody of the children to the mother. The trial judge made their decision, in part, based both on the fact that the father lived in an uninhabitable house that was purchased during the marriage (the House), and on the father's questionable financial ability to make the House livable.

On appeal, the father asked the Court to consider additional evidence on his finances and the renovations he had made to the House since trial. The British Columbia Court of Appeal determined that this was new evidence that did not exist at trial. Finding that the new evidence undermined a primary underpinning of the trial decision, the Court decided to admit it and, ultimately, overturn the trial judge's decision based on the new evidence.

Issues

The Supreme Court considered two key issues:

1. What is the correct legal test that applies to the admission of additional evidence on appeal?
2. Is there a difference between admitting "fresh evidence"–concerning events that occurred before trial, and "new evidence"–concerning events that occurred after trial?

Discussion

1. The test articulated in Palmer v The Queen still governs the admission of evidence on appeal

The Supreme Court decided that Palmer v. The Queen, [1980] 1 SCR 759 continues to set out the correct test to admit additional evidence on appeal (the Palmer Test). The Palmer Test is purposive, fact-specific, and driven by an overarching concern for the interests of justice. It ensures that admission of additional evidence on appeal will be rare. Further, it strikes a balance between two foundational principles: (i) finality and order in the in the justice system, and (ii) reaching a just result in the context of the proceedings.

Under the Palmer Test, additional evidence may be admitted on appeal only if it meets the following criteria, namely that the evidence:

1. could not, by the exercise of due diligence, have been available for the trial;
2. is relevant in that it bears upon a decisive or potentially decisive issue;
3. is credible in the sense that it is reasonably capable of belief; and
4. is such that, if believed, it could have affected the result at trial.

The first Palmer Test cirterion concerns party conduct. It requires litigants to take all reasonable steps to present their best case at trial; to put their best foot forward when first called upon to do so. A litigant in an appeal cannot be allowed to wait for direction from the trial judge to fill in gaps in their trial evidence. That would be fundamentally unfair to the other litigant in the adversarial proceeding. Consequently, the due diligence criterion calls upon the parties to exercise their due diligence before trial to protect certainty and fairness in the judicial process.

The last three Palmer Test criteria focus on the evidence adduced. They require courts to only admit evidence on appeal when it is relevant, credible, and capable of affecting the result at trial. These criteria are "conditions precedent" to the admission of evidence, and evidence that falls short of meeting these criteria cannot be admitted on appeal.

2. The Palmer Test applies to all evidence regardless of when it came into existence

The Supreme Court found that, to date, appellate courts have not consistently applied the Palmer Test in determining whether to admit "new" evidence adduced on appeal.

The Court then rectified this dissonance by clarifying that the Palmer Test is sufficiently flexible to apply to all evidence tendered on appeal. It is irrelevant whether the evidence relates to facts that occurred before or after the trial, or whether the evidence is "fresh" or "new".

Ultimately, the Supreme Court concluded that the British Columbia Court of Appeal erred by applying the wrong test to assess the admissibility of the additional evidence on appeal, and improperly admitted the additional evidence on appeal.

Takeaway

Given the Supreme Court's clear guidance, appellate courts are now less likely to give parties another "kick at the can" when it comes to submitting evidence on appeal.

The Supreme Court's decision in Barendregt emphasizes the importance of carrying out the proper due diligence to gather, assess, and submit all relevant evidence before trial courts. This process can be complicated. Having experienced legal counsel who can help guide through this process is key to avoiding evidentiary gaps that an appellate court may later refuse to fill.

BD&P is experienced in these evidentiary procedures. Should you need guidance, reach out to a member of our litigation group.