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Simon Shields, Lawyer

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Appeals - New Issues

Whiteman v. Iamkhong (Ont CA, 2015)

In this case the Court of Appeal cited the criteria that allow an issue, unargued at the lower proceeding, to be raised for the first time on appeal:
[6] In Kaiman v. Graham, 2009 ONCA 77 (CanLII), this court stated, at para. 18:
The general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at trial if it had been known that the matter would be an issue on appeal… The burden is on the appellant to persuade the appellate court that “all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”… In the end, however, the decision of whether to grant leave to allow a new argument is a discretionary decision to be guided by the balancing of the interests of justice as they affect all parties…


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