What is "fresh evidence" that was adduced at the hearing of the judgment in question?

“Fresh evidence” is evidence that existed before the judgment in question but was not adduced. “New evidence” is evidence relating to events that occurred subsequent to the decision: Struck v. Struck, 2003 BCCA 623 at para. 37. With one exception, the evidence in question here existed at the time of the subject hearing and so it is “fresh evidence”.

As a general rule, the proper course for the challenge of an order on the basis of events subsequent to the order (“new evidence”) – is a variation application: Henderson v. Henderson, 2005 BCCA 277. By contrast, the admission of “fresh evidence” is determined by reference to the test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 [Palmer], which is as follows: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases …. (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It 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.