Docket:
A-556-12
Citation:
2014 FCA 92
Present: STRATAS J.A.
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BETWEEN:
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DAVID BRACE
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Appellant
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and
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HER MAJESTY THE QUEEN
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Respondent
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REASONS FOR ORDER
STRATAS J.A.
[1]
The respondent moves for an order under Rule 351
permitting it to present new evidence on appeal.
[2]
To understand the anticipated role of the new
evidence in this appeal, it is necessary to set out some background.
[3]
The appellant appeals from a Tax Court order
dated June 25, 2012. The Tax Court dismissed the appeal for failure to
prosecute it in a timely fashion. In the course of its reasons for order, the
Tax Court made a key factual finding: the appellant consistently refused to
provide any contact information such as a residential address.
[4]
The appellant delayed in filing his notice of
appeal in this Court. As a result, he had to bring a motion in this Court for
an extension of time (which this Court granted). In his motion, he submitted
that he was not made aware of the Tax Court’s order when it was rendered and
only became aware of it roughly four months later. He offered an affidavit in
support of that motion. Attached as an exhibit to the affidavit was an undated
letter from the appellant to the Tax Court. In that undated letter, the
appellant informed the Tax Court of his address. The appellant says he sent
this letter to the Tax Court in mid-January 2012.
[5]
The appellant has filed the appeal book. The
undated letter appears in the appeal book.
[6]
It should not have appeared in the appeal book.
The undated letter was not before the Tax Court. Normally, only documents that
were before the Tax Court should appear in the appeal book.
[7]
Sitting in the appeal book, the undated letter
tends to undercut the Tax Court’s key factual finding that the appellant
consistently refused to provide contact information.
[8]
The respondent has now discovered this problem.
[9]
Faced with this problem, the respondent had two
options. The respondent could have moved for removal of the undated letter from
the appeal book. Or it could have moved for the admission of fresh evidence
related to the undated letter. The respondent has chosen to pursue the latter option.
Although the former option has the virtue of potentially simplifying the issues
on appeal, I shall deal with this motion as the respondent has framed it.
[10]
The fresh evidence is a letter dated January 7,
2014 from Lucie Pilon of the Tax Court of Canada to Tokunbo Omisade of the
Department of Justice. In this letter, the Tax Court states that “the Court has
no record of an undated letter that the appellant says he provided to the Court
sometime in mid-January 2012.”
[11]
The test for the admission of new evidence is
stringent: Palmer v. The Queen, [1980] 1 S.C.R. 759; Shire Canada Inc. v . Apotex Inc., 2011 FCA 10. In my view, all parts of the test are met in
this case:
(1)
The evidence should not be admitted if, by
due diligence, it could have been adduced at trial.
This is met. The January 7, 2014 letter postdates the trial.
(2)
The evidence must be relevant in the sense
that it bears upon a decisive or potentially decisive issue in the trial. This is met. The January 7, 2014 letter relates to the appellant’s
undated document, which document formed a key part of the factual finding that
that the appellant consistently refused to provide contact information.
(3)
The evidence must be credible in the sense
that it is reasonably capable of belief. This is
met. Written by a court official in the ordinary course of business, the
January 7, 2014 letter is reasonably capable of belief.
(4)
The evidence must be such that if believed it
could reasonably, when taken with the other evidence adduced at trial, be
expected to have affected the result. This is met. If
the panel hearing the appeal believes and gives weight to the January 7, 2014
letter, the letter may lead the panel to form conclusions regarding the appellant’s
undated letter. This, as I have said, relates to the trial judge’s key finding
that the appellant consistently refused to provide contact information.
[12]
I further note that even when the Palmer
test for the admission of fresh evidence has not been met, this Court has a
residual discretion to admit new evidence on appeal in the interests of
justice. But this is a residual discretion to be exercised only “in clearest of
cases” and “with great care”: Shire, supra at paragraph 18; see
also R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628 where the Supreme
Court itself admitted fresh evidence despite the Palmer test not being
met, suggesting that this residual discretion does exist.
[13]
Were the Palmer test not met here, I
would exercise my residual discretion in favour of admitting the January 7,
2014 letter. This case is unusual. The fresh evidence is being adduced to
address other fresh evidence that was placed improperly into the appeal book.
It is only one letter. I see no likelihood that its admission will set in train
a series of complicated factual disputes in the appeal. If that does not turn
out to be the case, the panel hearing the appeal may make any order it sees fit
concerning the admissibility of evidence before it, including the fresh
evidence mentioned in these reasons.
[14]
Therefore, for the foregoing reasons, I grant
the respondent’s motion. The January 7, 2014 letter shall be included in a
supplementary appeal book along with my Order, these reasons, and a table of
contents. The respondent shall prepare this supplementary appeal book and file
it within four days.
"David Stratas"
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