Duhaime's Law Dictionary


New Evidence Definition:

Evidence of matters that occurred subsequent to the order appealed from.

Related Terms: Fresh Evidence, Appeal, Evidence, Interest Reipublicae Ut Sit Finis Litium, Res Noviter Veniens Ad Notitiam

A term used in the context of appeals to limit the acceptance of evidence not referred to during the hearing or trial of which the appeal is from.

Distinguished from fresh evidence.

In Jens v Jens, Justice Levine of the British Columbia Court of Appeal wrote:

"(N)ew evidence ... is evidence of matters that occurred subsequent to the order appealed from, is not, however, considered fresh evidence as that expression is ordinarily used in this court....

"(T)he function of this Court (of appeal) is not to re-try a case, but to determine whether, in making the order under appeal, the trial judge ... made an error that would permit the court to intervene. To succeed, the appellant must show there was a material error, a serious misapprehension of the evidence, or an error in law....

"Where the new evidence sought to be admitted is of events that occurred subsequent to the trial or hearing appealed from, the usual rules for the admission of fresh evidence do not apply, and it will be admitted only in rare cases....

"In family law cases, a slightly more elastic approach is taken to the admissibility of fresh evidence, taking into account the interests of justice in not having a decision that is contrary to the known facts."1

Holly Brinton, in her Civil Appeal Handbook defines new evidence as evidence:

"... which relates to matters that have occurred subsequent to the judgment under appeal. The test for admission of new evidence is more stringent than the test for admission of fresh evidence. New evidence may be admitted in exceptional circumstances."

REFERENCES:

  • Brinton, Holly, Civil Appeal Handbook (Vancouver: Continuing Legal Education Society, 2012), Part 6
  • Jens v. Jens, 2008 BCCA 392

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