Appeals and Judicial Review - Fresh Law - Where Fresh Law Contradicts Previous LawThese are bold cases, where the fresh law advanced contradicts the party's previous (now abandoned) legal theory.
. Smith v. Kane
In Smith v. Kane (Ont CA, 2021) the Court of Appeal states the 'fresh law' (my term) principle, here in the context of a party's attempt to switch legal theories:
 First, the fact that this argument was not raised at trial is fatal to its success in this appeal. Generally, this court will not entertain entirely new issues on appeal for fairness reasons: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18; Whitby (Town) v. G&G, 2020 ONCA 654, at para. 9. Moreover, having presented and argued the case at trial on the basis that the standard of care depended on expert evidence (which is the typical approach in medical malpractice cases), it is not open to the appellant, after the trial judge rejected her expert evidence, to say for the first time on appeal, that the trial judge did not need expert evidence to decide the standard of care issues in this case.. Becker v. Toronto (City)
In Becker v. Toronto (City) (Ont CA, 2020) the Court of Appeal dismissed the appellate City's negligence argument that it had met the s.3(1) Occupiers Liability Act duty since, when it did not install the required safety glass, but it had nonetheless made all arrangements to do so (ie. it's not their fault):
3(1) An occupier of premises owes a duty to take such care as in all circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.The appeal court did not hear the merits of this argument since, at trial, the City couched the duty of care issue as one of whether it had installed the safety glass, not (additionally) whether it made reasonable efforts to do so:
 The City’s argument runs contrary to the well-established principle that a trial judge errs, not by failing to decide issues that were not raised, but, on the contrary, by deciding a case on a basis not advanced by the parties. Procedural fairness underlies that principle: Union Building Corporation of Canada v. Markham Woodmills Development Inc., 2018 ONCA 401, at paras. 13, 15.
 Strong authority contradicts the City’s argument that a position is advanced, and remains on the table, so long as it was pleaded and not formally abandoned, without regard to how the case was put at trial. Although the authorities arise in the context of attempts to raise a new issue on appeal, in my view they apply even more forcefully to an attempt to argue that a trial judge failed to consider an issue that was not raised before her.
 One such authority is Shaver Hospital for Chest Diseases v. Slesar (1979), 27 O.R. (3d) 383 (C.A.), leave to appeal refused,  1 S.C.R. xiii. The defendant physician argued at trial that he had not agreed to turn over his fees to a hospital. On appeal, he pursued a different line of argument, namely, that the agreement with the hospital was void for illegality. The defendant argued on appeal that he had never clearly and unequivocally abandoned this issue, and it was not disputed that it had been properly pleaded. Nevertheless, this court dismissed the appeal, on the basis that it would be unfair to permit the defendant to resurrect an argument virtually abandoned at trial on which relevant evidence was not fully adduced:
It seems clear, therefore, that the issue of illegality, although clearly pleaded, was not an issue at the trial. The evidence which is said to foreshadow this defence was not introduced for that purpose, but found its way accidentally in the evidence as part of the documentation on the existence of the arrangement. I am therefore of the opinion that it would be manifestly unfair to the respondent to allow the appellant to argue a point which was not raised at the trial at a time when relevant evidence bearing on it could have been introduced.: at pp. 387-38. In this case, the “reasonable care was exhibited even if tempered safety glass was not installed” theory was not clearly pleaded. Even assuming that the City’s statement of defence was broadly enough drafted to include this theory, the point is that it was not raised at trial. The evidence the City now points to, such as the involvement of its contractors and architects, was not introduced for the purpose of the “even if” theory. Unfairness to Ms. Becker would have resulted if it had been considered by the trial judge on a theory the City did not articulate.
 The City chose to fight the issue of whether it breached the duty of care on the point of the type of glass that was installed. There can be good reasons why a party will pick what appears to be its best point and eschew alternative “even if” or “fallback” positions. Such positions can be seen to weaken or distract from the main point. But that strategic choice has a consequence (if it did not, it would not have been a choice). As this court observed, citing Shaver, “you cannot take advantage afterwards of what was open to you on the pleadings, and what was open to you upon the evidence, if you have deliberately elected to fight another question, and have fought it, and have been beaten upon it.”: Pedwell v. Pelham (Town) (2003), 2003 CanLII 7488 (ON CA), 174 O.A.C. 147 (C.A.), leave to appeal refused,  S.C.C.A. No. 355, at para. 50.
 To hold otherwise would encourage parties to litigate by instalments, with deleterious consequences for the efficiency of the justice system and for access to justice.
 Additionally, I do not accept that the trial judge was required to consider an “even if” theory, which was not argued at trial, just because the City never expressly abandoned it. The parties may put the matter to the trial judge in a way that implicitly takes a defence off the table. In Cotic v. Gray, 1983 CanLII 57 (SCC),  2 S.C.R. 2, the Court considered circumstances in which counsel had agreed, with the approval of the trial judge, that the only question to be submitted to the jury was whether the defendant caused or contributed to the plaintiff’s injury. On appeal, the defendant argued that the trial judge had failed to instruct the jury on the issue of foreseeability of injury. The Court dismissed the appeal, finding that the question of foreseeability was implicitly conceded, given the parties’ agreement on the question to be submitted for adjudication:
[The question of foreseeability of suicide in these circumstances, in my opinion, was answered in favour of the respondent by the very form of the question put to the jury. The limited range of the question makes it clear that the question of foreseeability of suicide was agreed upon by the parties before the trial commenced and the only matter left open was that of causation. The parties contested the trial on this basis and it would be improper, in my view, to open a new issue at this time.: at p. 5. In my view, the way the parties put the issue of whether the City breached its duty of care to the trial judge took any fallback position about whether the City had shown reasonable care, even if the required type of glass had not been installed, off the table. The entire question of reasonable care was subsumed in the question of the type of glass that was installed and whether it complied with the Building Code.
 The trial judge was not obliged to consider the issue from a perspective other than the way it was put to her by the parties.