Brace v. R. – FCA: Crown permitted to introduce new evidence on appeal – letter from Tax Court Registry

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Brace v. Canada (April 4, 2014 – 2014 FCA 92) involved an application by the Crown to introduce new evidence on Mr. Brace’s appeal from a decision of the Tax Court. In the Tax Court his appeal had been dismissed on June 25, 2012 for want of prosecution. The Tax Court had found that he had consistently refused to file any contact information such as his residential address. Mr. Brace was late in appealing to the Federal Court of Appeal as a result of which he had to file an extension application (which was granted). On that application he had filed an affidavit which said that he had not become aware of the Tax Court’s decision until several months after it was issued and attached a copy of an undated letter to the Tax Court setting out his residential address which he claimed to have sent to the Tax Court in mid-January of 2012.  That letter formed part of the appeal book.

The Crown moved to introduce fresh evidence in the form of a letter from the Tax Court Registry stating that it had no record of the undated letter from Mr. Brace:

[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.”

The Federal Court of Appeal held that the letter from Ms. Pilon met the requirements for admitting fresh evidence on appeal:

[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 respondent’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 respondent’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.

The court also went on to note the unusual nature of the Crown’s method of proceeding but concluded that even if the evidence had not met the Palmer test it should be admitted under the court’s residual discretion:

[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.

Comment: This decision seems uncontroversial but one is left to wonder why the Crown did not simply move to strike the undated letter from the appeal book. As the motions judge noted, it would have potentially simplified the issues on the actual appeal (para. [9]).