Submissions and evidence

Submissions process

What is the briefing and argument process like in a typical commercial appeal?

The briefing process, generally referred to as appeal submissions, ordinarily involves the parties sequentially exchanging written submissions in the months or weeks prior to the appeal hearing. The structure and content of these written submissions will typically form the basis of an oral argument.

The oral argument at a typical commercial appeal will generally be focused on finding errors of law or fact in the primary judge’s decision. In the absence of witnesses and experts (which would have been dealt with at the trial level), the usual procedure is for the counsel for the appellant to orally present their case for appeal, followed by the respondent’s counsel making oral submissions as to why the appeal should fail. Depending on the nature of the oral submissions put forth by the respondent’s counsel, the appellant’s counsel may take the opportunity to reply to the respondent’s submissions. During the course of oral argument, the appellate judges may put questions to advocates, although this will depend on the structure and content of the submissions and the preference of the judge.

New evidence

Are appeals limited to the evidentiary record that was before the trial court, or can new evidence be introduced on appeal?

The usual rule is that the court to which an appeal is made will not receive evidence (oral or otherwise) that was not before the lower court. This evidence is known colloquially as ‘fresh evidence’ and will only be admitted in limited circumstances. The following are matters the court will consider in exercising its discretion as to whether to admit fresh evidence:

  • whether the evidence could have been obtained with reasonable diligence for use before the lower court;
  • whether the evidence is such that, if given, it would probably have an important influence on the result of the case (though it need not be decisive); and
  • whether the evidence is apparently credible (though it need not be incontrovertible).


Subject to the permission of the court, fresh evidence may be either oral or written. A more generous approach is sometimes taken to the admission of fresh evidence on an interlocutory appeal. 

New evidence of wrongdoing

If litigants uncover new evidence of wrongdoing that they believe altered the outcome of a trial court judgment, can they introduce this evidence on appeal?

The proper course for a litigant that wishes to rely on fresh evidence to show that a trial court’s judgment was obtained by fraud is to commence a new action asking for the trial court’s judgment to be set aside, rather than raising the issue on appeal.

If the question of fraud was not in issue in the original trial, there is no requirement in such an action that the party could have discovered the fresh evidence of fraud earlier through exercise of reasonable diligence.

New legal arguments

May parties raise new legal arguments on appeal?

The general rule is that a party may not rely on a point unless it was taken at trial. The leave of the court is required to rely on new points of law. The court will only grant leave where a party satisfies what has been described as the ‘heavy burden’ of showing that the case could not have been conducted differently, in any material respect, as regards the evidence had the new point been raised at trial.