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:

[14]      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).