PRACTICE |
Evidence |
Humanist Assn. of Toronto v. Canada
A-231-02
2002 FCA 322, Sharlow J.A.
12/9/02
5 pp.
Motion, pursuant to Federal Court Rules, 1998, r. 351, for leave to permit evidence to be presented on question of fact on appeal of respondent's refusal to register appellant as charitable organization--Affidavit evidence to establish two facts: (1) some documents before Minister when decision made not disclosed to appellant for comment, (2) organizations similar to appellant registered as charitable organizations--Motion granted--Test whether new evidence could with reasonable diligence have been discovered before end of trial, whether evidence credible, whether evidence practically conclusive on appeal: Frank Brunckhorst Co. v. Gainers Inc., [1993] F.C.J. No. 874 (C.A.) (QL)--Even if 3 tests not met, evidence may be admitted if interest of justice requires it: Glaxo Wellcome plc v. M.N.R. (1998), 225 N.R. 28 (F.C.A.); Amchem Products Inc v. British Columbia (Workers' Compensation Board), [1992] S.C.J. No. 110 (QL)-- Appellant not lacking diligence in failure to discover documents before decision made--As to conclusiveness test, existence of inconsistent decisions by respondent would not be practically conclusive of appeal--However, existence of inconsistent decisions not irrelevant -- Despite existence of some doubt about whether formal tests for admission of new evidence on appeal met, interests of justice best served by permitting new evidence to be presented on appeal--Federal Court Rules, 1998, SOR/98-106, r. 351.