Clarifying The Approach For Admitting New Evidence In Appellate Proceedings

• Published date: 07 June 2022
• Subject Matter: Litigation, Mediation & Arbitration, Family and Matrimonial, Family Law, Trials & Appeals & Compensation
• Law Firm: Clark Wilson LLP
• Author: Ms Chantal Cattermole and Dani Gorelov

The Supreme Court of Canada decision of R. v. Palmer [1980] 1 SCR 759 ("Palmer") established the criteria for appellate courts to consider when admitting new evidence on appeal. Since the Palmer criteria was established, Canadian courts have adopted varied approaches when dealing with evidence that had not existed before trial. In Barendregt v Grebliunas, 2022 SCC 22 ("Barendregt"), the Supreme Court of Canada clarified the approach for admitting new evidence on appeal.

The Palmer test to admit additional evidence on appeal

Appellate courts have the discretion to admit new evidence to supplement the record on appeal. The court will consider the four criteria established in Palmer to determine whether a party can adduce new evidence on appeal:

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

The first Palmer criteria reviews the conduct of the party seeking to adduce the evidence. This criteria has two central objectives. First, it promotes finality and order for the parties in the proceeding. Second, it preserves the distinction between the roles of trial and appellate courts. The last three Palmer criteria focus on the evidence being adduced. These criteria ensure that evidence will only be admitted on appeal if it is relevant, credible, and could have affected the result at trial.

Application of Palmer to new evidence

In Barendregt, the Supreme Court of Canada was tasked with determining whether and how the Palmer test applies to "new" evidence. That is, evidence that had not existed before trial. Appellate courts in Canada have adopted different approaches to new evidence. While some courts applied the Palmer criteria to new evidence, others applied a modified test. In British Columbia, the Court of Appeal concluded that the Palmer criteria did not govern the admission of new evidence.

The Supreme Court of Canada held that the Palmer test applies to the admission of new evidence on appeal. The application of the criteria remains the same even when the evidence came into existence after the trial. The first Palmer criteria...