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:

[82]      … The parties were not in a position to address remedy without knowing the Tribunal’s decision on the merits. …

[83]      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 Alliance.

[84]      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.

[85]      I would allow the cross-appeal and admit the fresh evidence.