Simon's Legal Resources

Review - Fresh Law

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COMMENT

'Fresh law' is not a ground of review. It is an appeal/JR (together, 'review') procedural principle, raised by either party seeking to add a new ground of review or legal principle on such review. Typically, the party seeking to add the fresh law should seek express permission from the court by motion to do so, as the default presumption is that an appeal/JR is restricted to the legal grounds argued below.

'Fresh law' - when granted - is simply the arguing of new legal principles at the appeal level that were not argued below. 'Fresh law' is my own term. I use it as it is similar to the widely-used term 'fresh evidence', which is used in appeal [and now more frequently in judicial review (JR)] law when the appellant wants to supplement the evidentiary record that was created at the lower court or tribunal for the purpose of the review.

The classic instance of 'fresh law' is that of a self-presenting party that loses the case at the first level, but - as they learn more about the applicable law during a review process - gets 'better' (and 'fresh') ideas about how to present their case anew. This natural human 'learning' phenomenon occurs almost universally with self-presenters (and even quite often with those who are represented), and to hinder it is a plain compromise in full justice in favour of immediate 'efficiencies'. With the presumptive 'fresh law' rule that parties get 'one chance' to elect for - and advance - their case, the courts have elected against a natural human dynamic (which is all the more important for self-presenters) on the argument that to do otherwise wastes court/party resources, and risks injustice to the opposing parties.

The essential principle underlying 'fresh law' is that of 'notice' in the hearing process, itself the essence of natural justice, and now - procedural justice. The fear is that granting a fresh law motion on review demands extra time, money and process to avoid injustice to the other parties. The same principle is manifest in the frequent review ground of 'failure to engage' where the decision-maker decides the case on unargued and unpled grounds - this doctrine too finds it's basis in natural justice, or simple good hearing practice.

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CASES

General
Reviews - Fresh Law - Basics (+)
Reviews - Fresh Law - Policy Behind

Exceptions
Reviews - Fresh Law - Exceptions

Type of Law
Reviews - Fresh Law - Administrative (+)
Reviews - Fresh Law - Charter (+)
Reviews - Fresh Law - Constitutional
Reviews - Fresh Law - Criminal
Reviews - Fresh Law - Judicial Review

Critique
Review - Fresh Law - Critique

Other
Reviews - Fresh Law - Rules of Civil Procedure (RCP)
Reviews - Fresh Law - By Respondent
Reviews - Fresh Law - Where Fresh Law Contradicts Previous Law
Reviews - Fresh Law - Where Tribunal or Court Raises New Issue Themselves
Reviews - Fresh Law - Remedy
Reviews - Fresh Law - Where Failure to Object
Reviews - Fresh Law - Promptness
Reviews - Fresh Law - Record
Reviews - Fresh Law - First Time at Supreme Court
Reviews - Fresh Law - Issue Estoppel

Reviews - Fresh Law - Other