Fresh Evidence in the Court of Appeal

My case involved a client who was employed to produce computer software for use in designing roofs.  The specific application was for the large flat roofs of warehouses and industrial plants.  The problem to be solved was that rainwater would collect on the flat roofs.  The weight of the water caused the roofs to sag, creating bigger pools of water.  The increased weight over the long term adversely affected the integrity of the roof.  The software in question allowed the design of multiple, lightweight, low-level pyramids all over the roof.  It was a complicated design process that only a computer could do.  With the addition of the pyramids, the water would flow off the roof.

When my client was dismissed from his employment, he had a claim for wrongful dismissal.  That was complicated when his employer’s companies went bankrupt and his employer went personally bankrupt.  All of the assets of his business were transferred to a trustee in bankruptcy.  My client negotiated with the trustee to purchase the roof design software.  My client now had his own business.  Unfortunately, the previous employer had kept a copy of the software.  He started operating the same business through a company owned by his wife. 

I commenced a legal claim on behalf of my client against the company operating the roof design business.  That company immediately went to court and obtained an injunction against my client to stop him from contacting clients in his business using the roofing software.  It claimed that it was the rightful owner of the software and my client had no rights to it.  I then went to court and showed the bankruptcy, the transfer to the trustee and the purchase from the trustee.  The court removed the injunction and imposed an injunction in favour of my client against the company of the bankrupt’s wife.  It could not use the software. 

Unfortunately, that was not the end of the matter.  There were 21 court appearances as the parties battled it out to control the use of the software.  The defendant moved the software to the United States and continued business there.  The matter was at the Court of Appeal at one point.  The company of the bankrupt’s wife applied for leave to appeal the injunction.  An appeal is not automatic from an order pronounced leading up to trial.  Those orders are called interlocutory orders.  It was necessary to ask permission to appeal an interlocutory order.  The company of the bankrupt’s wife applied to introduce new evidence at the application for leave to appeal.  New evidence is also called fresh evidence. 

The application was heard by Mr. Justice Hinds.  He listened to the application and then asked both lawyers to go away and to research a particular point.  It was three months until we reappeared before Mr. Justice Hinds. 

Following a decision of the Supreme Court of Canada, applications for the introduction of fresh evidence on the hearing of an appeal had been adjourned to the date set for the hearing of the appeal. That gave the panel hearing the appeal, rather than a chambers judge in advance, the task of deciding whether or not the fresh evidence should be admitted. 

The question asked by Mr. Justice Hinds was whether a Court of Appeal justice, sitting in chambers before the date of the appeal, could consider fresh evidence when determining whether to grant or refuse an application for leave to appeal an interlocutory order made by a judge of the Supreme Court.  There was little authority on the point.

After listening to both counsel on the point, Mr. Justice Hinds decided that he could consider the fresh evidence.  This was not a decision to admit the fresh evidence, only to consider it.  After considering the fresh evidence and all of the circumstances, the judge declined to grant leave to appeal. 

There are 16 references to the case in subsequent court proceedings. Gudaitis v. Abacus

Appealing a Court Decision in Civil or Family Matters

If you disagree with a decision of the BC Provincial Court or BC Supreme Court, you can ask a higher court to review the decision of the judge to determine if the judge  made any errors in that decision. This review is called an appeal. The appeal court will determine whether the judge made an error in applying the law, in reviewing the facts, or a combination of these. If the higher court finds that the lower court made an error, it can overturn the decision or order a new trial.

An appeal court is concerned only with identifying errors of law and mixed fact-and-law. It will not re-hear a case from beginning to end, and it will not change or overturn a decision simply because it does not agree with some part of the decision or finds some part of it unfair. The appeal court focuses on whether the appellant shows that the decision-maker made a legal or factual error that affected the outcome of the case.

To successfully start an appeal, you must act quickly and follow the correct procedures, which we describe below.

BC Supreme Court Decisions

To appeal an unfavourable decision of the BC Supreme Court, you must file an appeal at the BC Court of Appeal. Within 30 days of the date of the decision you are appealing, you must do the following:

  • prepare a Notice of Appeal;
  • file the Notice of Appeal at the BC Court of Appeal registry;
  • pay the court filing fee; and
  • serve a copy of the filed Notice of Appeal on the respondent(s).

The BC Court of Appeal does not automatically hear an appeal of every case. You will be able to appeal nearly any BC Supreme Court civil or family trial decision. But for some other types of decisions, you will have to ask the Court of Appeal’s permission to appeal, called “leave to appeal”. Typically, decisions requiring leave to appeal are orders made at case management conferences (such as case planning conferences or trial management conferences), interim orders, orders about procedural matters (such as those granting or refusing time extensions), and orders dealing only with costs. Section 11 of the Court of Appeal Rules sets out the full list of the types of decisions that require leave to appeal.

BC Provincial Court Decisions

To appeal a decision in a Small Claims civil matter or Provincial Court family matter, you must file the appeal at the BC Supreme Court, which is the court level above the Provincial Court.  The BC Supreme Court has final jurisdiction over Small Claims appeals, and the parties cannot further appeal the BC Supreme Court’s appeal decision to the BC Court of Appeal.

To start an appeal of a Provincial Court decision, within 40 days of the decision you wish to appeal, you must prepare a Notice of Appeal, and file it at the Supreme Court registry closest to the Provincial Court which issued the decision you seek to appeal. You must also serve a copy of the filed Notice of Appeal on the other party.

In addition, you must pay a deposit of $200 to the Supreme Court registry, which is security for a costs award to the other party if you lose your appeal. If you win your appeal, the court will return the deposit to you. You must do all this within 40 days after the court decision you seek to appeal.

Transcripts and Arguments

In both Supreme Court and Provincial Court appeals, once the respondent has been served with the Notice of Appeal, the appellant must take steps to order a transcript of the proceeding that culminated in the court decision under appeal. The appellant must then file a copy of the transcript at the court registry, along with a copies of evidence submitted in the original proceedings (such as exhibits, affidavits and other documents) and serve a copy of these materials on the other party.

After that, the appellant must prepare a written argument (called a “factum”) setting out the grounds for the appeal, file it at the court registry, and serve it on the respondent. The respondent will then have a period of time to prepare and file a reply argument, and serve it on the appellant.

Thereafter, the court will schedule a date for the hearing of the appeal, and the parties will appear in court to speak to and reply to the appeal.

Legal help for Appellants and Respondents

If you want to appeal a court decision affecting you, or need to respond to another party’s appeal of a decision affecting you, we are happy to help.  We will review the decision, provide you with advice on the prospects of success of the appeal, and assist you in every step of the appeal process.