Is a trial judge bound by the strict rules regarding the admissibility of fresh evidence in an appeal?
British Columbia, Canada
The following excerpt is from Brown v. Douglas, 2011 BCSC 113 (CanLII):
In Clayton Macdonald J.A. found that a trial judge was not bound by the strict rules regarding admissibility of fresh evidence that apply to an appellate court. Those rules were not totally irrelevant, however, as he went on to say at p. 296 that “I may add that [a trial judge] might well be guided, although not bound, by the rules referred to.” In Scott v. Cook the court held at p. 118 that a party seeking to admit new evidence was required to “also prove that such evidence could not have been obtained by reasonable diligence before trial.” In my view, the obligation on the part of the applicants to show that evidence upon which they now rely could not have been obtained through due diligence is the same on an application to set aside judgment obtained pursuant to Rule 18A as the obligation that rests upon a party unsuccessful at trial.
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