In a highly anticipated decision, the Supreme Court of Canada (the “SCC”) in Barendregt v Grebliunas, 2022 SCC 22 confirmed the appropriate test for admitting additional evidence on appeal.
This decision confirms that the long-standing test set out in R.v. Palmer,  1 SCR 759, applies both to evidence that existed at the time of trial but was not adduced at that time, and to “new” evidence that came into existence following the trial.
In Palmer, it was established that four criteria ought to be used to determine if appellate courts should exercise their discretion to admit additional evidence on appeal:
- the evidence could not, by the exercise of due diligence, have been obtained for the trial;
- the evidence is relevant in that it bears upon a decisive or potentially decisive issue;
- the evidence is credible in the sense that it is reasonable capable of belief; and
- the evidence is such that, if believed, it could have affected the result at trial.
Barendregt deals with a family law dispute where the British Columbia Court of Appeal (the “BCCA”) considered whether to admit evidence not adduced at trial. The BCCA characterized this evidence as “new” and therefore did not apply the test set out in Palmer.
The SCC overturned the BCCA’s decision and confirmed that the test established in Palmer ought to have been applied.
Key Takeaways from Barendregt:
1. The same test applies to evidence that existed at the time of trial and to “new” evidence:
The SCC found that the lower court erred in drawing a distinction between “new evidence” that was not in existence at the time of trial and “fresh evidence” that was in existence at the time of trial but was not adduced at that time.
The SCC in Barendregt has eliminated the inconsistent distinction that had emerged in the case law between “fresh” and “new” evidence. The Palmer test now applies “regardless of when the evidence or the specific fact came into existence.”
2. The Palmer test appropriately balances competing interests:
In deciding whether to admit evidence on appeal, the SCC identified that the overriding consideration is the interests of justice. The SCC held that the test set out in Palmer reconciles the tension between two foundational principles: the need for finality and order, and the interest in reaching a just result.
Courts must reconcile the truth-seeking function of our judicial system with the need to prevent the possibility of witnesses “simply repudiating or changing [their] trial evidence to reopen trials at will to the general detriment of the administration of justice.” In the event that evidence is admitted, judicial actors retain the discretionary power to provide the opportunity for the opposing party to respond to evidence where its probative value is in dispute. Although a distinct emphasis is placed upon the balancing of these core interests, the SCC did remark that in exceptionally rare circumstances, the need for finality and order may need to yield “in the interests of justice.”
The SCC confirms that as a purposive, fact-specific standard, the Palmer test provides the requisite flexibility for judicial actors to respond to the virtually infinite variety of circumstances that may arise, preserve judicial finality, and render decisions that achieve a just result.
3. Thorough due diligence is required in preparation for trial:
The approach in Barendregt is grounded in the principle of fundamental fairness and an acknowledgement that effective and efficient use of judicial resources ought to remain a paramount concern. It also reinforces the need to preserve the underlying structure of our court system. Trial courts are tasked with making findings of fact and evaluating evidence, while in contrast, appellate courts are responsible for reviewing trial decisions for errors. The majority of the SCC advances the position that permitting litigants to tender new evidence broadly on appeal would blur this critical distinction. This is consistent with the idea that “matters in issue between the parties should narrow rather than expand as [a] case proceeds up the appellate ladder.”
The first criterion set out in Palmer, that the evidence could not, by the exercise of due diligence, have been obtained for the trial, is distinctive because it touches upon this concern by focusing on the conduct of the parties, rather than the content of the evidence in question. Rather than providing litigants with a mechanism to make up for defects in their case, courts are concerned with whether the “evidence could have been available for trial with the exercises of due diligence.” In doing so, a failure to exercise due diligence will generally foreclose admission. In turn, Barendregt reduces the potential opportunity for litigants to have a second chance at presenting evidence that they failed to adduce at trial and increases the need for clients and for counsel to ensure that they put their best foot forward at trial.
If you have any questions, please feel free to contact a member of our Litigation & Dispute Resolution Group.
 Barendregt v. Grebliunas, 2022 SCC 22 at para 34.
 Barendregt, at para 55.
 Palmer v. The Queen,  1 SCR 759 at 775.
 Barendregt, at para 47.
 Palmer, at 775.
 Barendregt, at para 70.
 Barendregt, at para 54.
 Barendregt, at para 40.
 Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2 at para 10.
 Barendregt, at para 61.
 Barendregt, at para 61.
 Stav v, Stav, 2012 BCCA 154 at para 32.
Andrea Lutsch is an associate in the Calgary office of Lawson Lundell LLP. Her practice focuses on general commercial litigation with a particular emphasis on professional negligence, professional conduct, and corporate ...
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