In an appeal before the Saskatchewan Court of Appeal, can a
prospective appellant introduce fresh evidence in support of an
application for leave to appeal? In Pederson v.
Saskatchewan (Minister of Social Services), 2015 SKCA 87,
the Court concluded that it lacked jurisdiction to consider fresh
evidence on an application for leave to appeal.
In Pederson, the prospective appellants sought leave to
appeal the Queen's Bench Chambers judge's decision denying
certification of a proposed class action on behalf of foster
children that had suffered a personal injury while a ward of the
Province of Saskatchewan. In support of their application for
leave, the prospective appellants sought to introduce as fresh
evidence an affidavit sworn by a class member seeking to act as a
representative plaintiff in the action.
Although the Court of Appeal granted leave to appeal to the
prospective appellants, it nonetheless held that The Court of
Appeal Rules only allowed for fresh evidence on an appeal, and
since an application for leave is not an appeal, fresh evidence
could not be adduced:
With respect to the filing of fresh evidence, Rule 59 only allows
such applications to be made on appeals. However, this application
is not an appeal. I determine that I lack the jurisdiction to
consider the affidavit material as fresh evidence.
This decision may be usefully contrasted with:
Schafer v. Island View (Resort Village), 2009 SKCA
104, in which the Court of Appeal considered the merits of the
appellants' fresh evidence when considering the prospective
appellants' application for an extension of time, the test for
which also requires a prima facie evaluation of the
prospective appeal's merits; and
the approach in British Columbia, where a Court of Appeal
justice sitting in chambers may consider fresh evidence: see e.g.
Gudaitis v. Abacus Systems Inc. (1992), 65 B.C.L.R. (2d) 1
at para. 22 (B.C. C.A.) (http://canlii.ca/t/1d9rh), recently affirmed
and applied to applications to reinstate an appeal in Reger v.
Savage, 2009 BCCA 547 at para. 10 (http://canlii.ca/t/27dck).
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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