Date: 19980515
Docket: A-193-98
C O R A M: STRAYER J.A.
B E T W E E N:
CLAUDE SCOTT
Appellant
" and "
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
STRAYER J.A.
An appeal from a decision of the Trial Division should be based on the evidence before the Trial Division at the time its decision was made unless the proposed new evidence meets the strict criteria for the admission of new evidence on appeal.
The new evidence proposed in the notice of motion of the Appellant filed on April 23, 1998 does not meet those criteria. "Exhibit A" in his supporting affidavit mostly recites facts which were known to the appellant before his application to the Trial Division for an extension of time, and to the extent that they were not they could have no effect on this appeal. "Exhibits B and C" do not contain facts which could be in any way determinative of the application for an extension of time. "Exhibit D" is a statutory provision which, of course, can be relied on without it being specially admitted.
With respect to the affidavits proposed for admission by the respondent in its notice of motion filed on April 18, 1998, I believe they might meet the criteria for admissible new evidence if the matter to which they may provide a reply, namely the attack on the jurisdiction of the adjudicator, had not been raised before February 17, 1998, the day the appellant"s "reply" memorandum was served on the respondent. In such case the respondent would have had no prior and reasonable opportunity to obtain and submit this evidence in its initial response to the appellant"s motion for an extension of time. I am unable to determine whether the motions judge had the appellant"s attack on jurisdiction in this "reply" memorandum before him when on February 17, 1998 he made the order appealed from. I am also unable to determine whether the respondent"s proposed new evidence, if admitted, would contribute to an argument as to whether the appellant has an arguable case in the proposed judicial review, a matter which would be relevant to an appeal from an order refusing an extension of time.
I will therefore dismiss the appellant"s motion. I will make no order as to admission of the respondent"s proposed evidence, namely the affidavits of Maureen Crocker dated April 7, 1998 and of Murielle Lavigne dated April 3, 1998, but will order them included in the appeal book for consideration by the appeal panel as to whether they are admissible as new evidence.
"B.L. Strayer"
J.A.