In its April 20, 2015 decision in Prince Edward County Field Naturalists v.
Ostrander Point GP Inc., the Ontario Court of Appeal held
that the Divisional Court erred in refusing to admit fresh evidence
on appeal. The decision is a reminder that parties will not always
be held to an extremely strict standard of diligence in respect of
whether the evidence could have been tendered in the Court below.
It also is a reminder than an appellate court should take a
holistic view of evidence that could be relevant to "questions
of law" on appeal.
In an appeal from an Environmental Review Tribunal decision, the
Divisional Court held that the Tribunal erred in, among other
things, addressing remedy. Ostrander (the appellant before the
Divisional Court) sought to admit fresh evidence of steps it had
taken after the Tribunal decision to mitigate the environmental
impact of its proposed plans. The Divisional Court did not admit
the evidence for two reasons. First, the Divisional Court held that
Ostrander could have taken these steps before the hearing before
the Tribunal. Second, the Divisional Court held that the fresh
evidence was related to "facts" and its jurisdiction on
appeal was limited to questions of law.
Justice Juriansz held that "The Divisional Court applied
the fresh evidence test too strictly". He held:
 ... The parties were not in a position to address remedy
without knowing the Tribunal's decision on the merits. ...
 Ostrander could not reasonably have been expected to
address the appropriate remedy in relation to each of the many
different attacks mounted by the Field Naturalists and the
 I do not agree that the fresh evidence was tendered solely
to address factual issues. Questions before the court included
whether the Tribunal failed to provide the parties with procedural
fairness and whether the Tribunal misinterpreted its statutory
remedial authority. These are questions of law. The fresh evidence
provides some illumination of these questions. It shows concretely
what Ostrander could have contributed had it been accorded the
opportunity to address the issue of the appropriate remedy.
 I would allow the cross-appeal and admit the fresh
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