Jeramie J.A. Gallichan

The appellant brought a motion to admit fresh evidence on appeal.

The respondents opposed the motion on the basis that the appellant could not meet the due diligence criterion of the Palmer test.

The Divisional Court allowed the motion, finding that the interests of justice favoured admitting the evidence despite the lack of due diligence, given the uncertainty in the law, the nature of the evidence (procedural history), and the potential serious effect of denying admission.

The appellant appealed an order dismissing its motion to restore a construction lien action to the trial list and denying it the right to deliver a defence to the respondents' counterclaim.

The Divisional Court admitted fresh evidence explaining the delay, which was largely due to the parties focusing on a companion action and the respondents' own delays in fulfilling undertakings.

The Court found the appellant met both the 'ready for trial' test and the test for explaining delay without causing non-compensable prejudice.

The appeal was allowed, the action was restored to the trial list, and the appellant was permitted to file a defence to the counterclaim.