What is the test for "fresh evidence" on appeal?

British Columbia, Canada


The following excerpt is from Yang v. Re/Max Commercial Realty Associates (482258 BC Ltd.), 2017 BCCA 341 (CanLII):

The criteria for the admissibility of “fresh evidence” on appeal are well known: Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. As stated in Winskowski v. Coldstream (District) 2013 BCCA 234 at para. 43, an appellate court must consider: a) whether, with due diligence, the evidence could have been adduced at trial; b) whether the evidence is relevant, meaning whether it bears upon it decisive or potentially decisive issue at trial; c) whether the evidence is credible, meaning reasonably capable of belief; and d) whether if believed, the evidence could, when taken together with other evidence, be expected to have affected the result at trial. e) This court has made it clear on many occasions that the overarching consideration is always in the interests of justice.

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