3.5 Introducing fresh or new evidence
In general, you cannot introduce fresh evidence (evidence that existed at the time of your original court proceeding) or new evidence (evidence of matters that occurred after the order you are appealing) at your appeal. You must rely on the evidence that you submitted in the previous proceedings. However, you may introduce fresh or new evidence with leave (permission) from the division hearing the appeal.
How to apply to introduce fresh or new evidence
At least 30 days before the appeal hearing date you must take the following steps:
- Prepare a notice of application (Form 4) and indicate on the application that you are seeking leave to introduce fresh or new evidence.
- Prepare an affidavit that includes the fresh or new evidence you want to introduce.
- Prepare any other affidavits with facts that you want to rely on in support of your application.
- You may prepare a written argument explaining why you should be permitted to introduce new evidence, keeping in mind the principles discussed below. The written argument cannot exceed 10 pages.
- File the above materials at least 30 days prior to your appeal hearing. If you file in paper you will need at least 6 copies (4 for use by the court, one for you, plus one copy for each respondent).
- Serve a copy of the filed materials on each respondent at least 30 days prior to your appeal hearing.
At the beginning of the appeal hearing, you should tell the court that you want to make a request to submit fresh or new evidence. The application may be heard by the division at the start of the appeal hearing, but usually the division will prefer to have arguments about new evidence made during the parties’ main presentations on the appeal. The court will hear your reasons why this evidence should be considered on appeal. If the respondent objects to your request, they will have an opportunity to explain why the evidence should not be introduced.
These are the general principles the division will consider on your application to admit fresh or new evidence:
- The evidence will generally not be admitted if you could have introduced it at trial.
- The evidence must be relevant in the sense that it relates to a decisive or potentially decisive issue in the case.
- The evidence must be credible in the sense that it is reasonably capable of belief.
- If believed, the evidence could reasonably, when taken with the other evidence introduced, be expected to have affected the result.
To protect the finality of trial court proceedings, new evidence (evidence related to matters that occurred after the order you are appealing) is only admitted in rare or exceptional circumstances.