Appeals and Judicial Review - Fresh Law - Where Tribunal or Court Raises New Issue Themselves. Canada (Attorney General) v. Ennis
In Canada (Attorney General) v. Ennis (Fed CA, 2021) the Federal Court of Appeal considered an issue of procedural fairness where a tribunal ruled against a party based on an undisclosed and unargued issue:
 ... in terms of disclosure, procedural fairness instead only normally requires that a decision-maker not ... base an adverse determination upon a new legal issue without giving the parties the opportunity to make submissions on the point (I.W.A., Local 2-69 v. Consolidated Bathurst Packaging Ltd., 1990 CanLII 132 (SCC),  1 S.C.R. 282, 68 D.L.R. (4th) 524 at pp. 321, 338; Arsenault v. Canada (Attorney General), 2016 FCA 179, 486 N.R. 268 at paras. 20-33).. Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks
In Nation Rise Wind Farm Limited Partnership v. Minister of the Environment, Conservation and Parks (Ont CA, 2020) the Divisional Court heard a judicial review application from a wind energy firm. The decision to be reviewed was that a Ministerial appeal from an Environmental Review Tribunal (ERT) ruling [the appeal was conducted by the Minister of the Environment, Conservation and Parks under s.145.6(2) of the Environmental Protection Act]. The main issue was whether the decision of the Minister, made on issues that were not argued at the ERT hearing, denied the appellant procedural fairness:
 With respect to procedural unfairness, Nation Rise argues that the Minister failed to provide adequate notice that harm to bat maternity colonies was an issue on the appeal. Thus, he breached the principle of audi alteram partem - that is, the right of the applicants to address the issue in a meaningful way, with reference to material in the record. ... . R v Mian
 In Vavilov at para. 77 the Supreme Court confirmed that “[t]he duty of procedural fairness in administrative law is “‘eminently variable’, inherently flexible and context-specific”. The non-exhaustive list of factors that inform the content of that duty include “(1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or the individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself” (the “Baker factors”).
(i) The Nature of the Decision Being Made and the Process Followed in Making It
 In this case the Minister submits that the nature of the decision being made was consistent with minimal procedural fairness as it was a ministerial decision closer to the policy end of the spectrum. In Martineau v. Matsqui Institution, 1979 CanLII 184 (SCC),  1 S.C.R. 602 at 628, Dickson J., as he was then, found that this rule applies to “purely ministerial decision[s]”. However, such decisions were distinguished from those of a judicial or quasi-judicial nature in which individuals were entitled to substantial procedural fairness (ibid at pp. 628-629).
 According to the Minister, the use of the phrase “in the public interest” in s. 145.6(2) makes it clear that the “appeal” to the Minister was not to be considered judicial or quasi-judicial in nature. We have rejected this submission in dealing with the Minister’s authority to raise new issues on the appeal. Further, the Minister’s decision makes it clear that in deciding the issue of whether the “harms test” had been met he did not consider the public interest.
(ii) Nature of the Statutory Scheme
 The Minister’s appeal is the last appeal provided for in the statutory scheme. According to Baker, this supports the imposition of a higher standard of procedural fairness.
(iii) Importance of the Decision to the Individual(s) Affected
 The Minister’s decision is an important one – both to the proponent of the Project (Nation Rise) and to the appellant before the Minister (CCNS). This too supports a higher standard of procedural fairness.
(iv) Legitimate Expectations of the Persons Challenging the Decision
 Both the past practice of the Minister and the proposed procedure outlined by the Minister in this case gave rise to a legitimate expectation on the part of all parties that they would have the right to notice of the issues that were of concern and the opportunity to meaningfully address those issues.
(v) Choice of Procedure Followed by the Minister
 The Minister submits that deference should be given to his choice of procedure because the procedures on appeal are not constrained by statute (other than the requirement that the appeal be in writing). However, the Minister, like other administrative decision-makers, is still required to comply with common law duties of fairness, unless those rules have been ousted by express statutory language or by necessary implication (which they have not) (Re Webb and Ontario Housing Corporation (1978), 1978 CanLII 1490 (ON CA), 22 O.R, (2d) 257 (C.A.); Supermarchés Jean Labrecque Inc. v. Québec (Tribunal du travail), 1987 SCC 19). The common law duties of fairness include the duty to give notice and the rule of audi alteram partem, which affords all parties the right to be heard on the salient issues of the case.
 A weighing of the Baker factors leads to the conclusion that the Minister’s duty of procedural fairness was more than minimal. It at least included the obligation to give the parties meaningful notice of the significant issues and the opportunity to address those issues
 In this case CCNS and the Minister argue that Nation Rise was given notice of and the right to be heard on the issue that the case was decided on ̶ bat maternity colonies ̶ because the Minister specifically asked for submissions on bats. This submission ignores the fact that the parties were to restrict their submissions to the errors committed by the ERT, and nowhere in the ERT’s reasons or in the evidence of the experts heard on the issue of bats was the issue of bat maternity colonies discussed in relation to whether the Project would cause serious and irreversible harm to bats. Furthermore, the issue of bat maternity colonies was neither raised nor discussed by any of the parties in their submissions to the Minister. Therefore, how can it fairly be said that Nation Rise knew or ought to have known that the Minister might decide the appeal because of a concern about bat maternity colonies? Finally, the argument that Nation Rise made a “strategic” decision not to file the Pre-Construction Monitoring Report makes no sense, given the contents of that report. In fact, given that the Report addresses the issue of bat maternity colonies, the fact that the Report was not filed supports Nation Rise’s position that it did not have proper notice of the issue.
 Bat maternity colonies turned out to be the most significant issue in the appeal. In our view the Minister breached his duty of procedural fairness when he failed to give Nation Rise notice of or the opportunity to be heard on the question of bat maternity colonies.
In R v Mian (SCC, 2014) the Supreme Court of Canada set out in this criminal case the factors involved in the decision of an appellate court to entertain (or themselves raise) new issues in an appeal, and the procedures to be used in making that decision (anyone considering this case for civil use should examine it carefully as it appears to be heavily focussed on it's criminal application):
A. When Can an Appellate Court Raise a New Issue?
 It is not disputed that an appellate court has the jurisdiction to invite submissions on an issue neither party has raised. This appeal raises the questions of how broad this jurisdiction is, when it should be exercised, and what procedures should be followed when it is invoked.
(1) What Is a “New Issue”?
 This case turns on whether and how an appellate court can raise a new issue on appeal. It is therefore important to first define what a “new issue” is.
 An issue is new when it raises a new basis for potentially finding error in the decision under appeal beyond the grounds of appeal as framed by the parties. Genuinely new issues are legally and factually distinct from the grounds of appeal raised by the parties (see Quan v. Cusson, 2009 SCC 62 (CanLII), 2009 SCC 62,  3 S.C.R. 712, at para. 39) and cannot reasonably be said to stem from the issues as framed by the parties. It follows from this definition that a new issue will require notifying the parties in advance so that they are able to address it adequately.
 In defining what a new issue is, it is important to recognize what will not constitute a new issue raised on appeal. First, not all questions asked by an appeal court will constitute a new issue. The jurisdiction of appellate courts to ask questions during the oral hearing is well established. This jurisdiction is broad and is limited only by the requirement that questions not be “raised in a manner which suggests bias or partiality on the part of the appeal court” (R. v. W. (G.), 1999 CanLII 668 (SCC),  3 S.C.R. 597, at para. 17, per Lamer C.J.). Nothing in these reasons should be construed as limiting the ability of appellate judges to ask any question in the course of the oral hearing.
 Questions raised during the oral hearing may properly touch on a broad range of issues, which may be components of the grounds of appeal put forward by the parties, or may go outside of those grounds in an aim to understand the context, statutory background or larger implications. For example, an appellate court may pose questions as to the practical workings of a statutory regime. Absent any concerns about bias, questions raised during the oral hearing, whether linked directly or by extension to the grounds of appeal or not, are not improper (see W. (G.), at para. 17). Such questions may be necessary for the court to gain a more complete understanding of the issues at hand.
 Second, issues that are rooted in or are components of an existing issue are also not “new issues”. Appellate courts may draw counsel’s attention to issues that must be addressed in order to properly analyze the issues raised by the parties. For example, in a case involving a claim of self-defence, the parties may argue exclusively over whether the accused’s belief that his life was in danger was reasonable, but it may be necessary for the court to first analyze the issue of whether the accused subjectively believed that he was at risk of death. This is not a “new issue”, but a component of the overall analysis of the grounds as raised by the parties. However, where appropriate, the court may have to be prepared to grant even a brief adjournment to allow the parties to consider and canvass the issue.
 Finally, issues that form the backdrop of appellate litigation, such as jurisdiction, whether a given error requires a remedy and what the appropriate remedy is, or as discussed below, the standard of review, are not new issues and parties should not require notice to address them.
 In summary, an appellate court will be found to have raised a new issue when the issue was not raised by the parties, cannot reasonably be said to stem from the issues as framed by the parties, and therefore would require that the parties be given notice of the issue in order to make informed submissions. Issues that form the backdrop of appellate litigation will typically not be “new issues” under this definition. Exercising the jurisdiction to ask questions during the oral hearing will not constitute raising a new issue, unless, in doing so, the appellate court provides a new basis for reviewing the decision under appeal for error.
(2) What Considerations Should Guide an Appellate Court in Determining Whether to Raise a New Issue on Appeal?
 The parties do not dispute that appellate courts have the jurisdiction to raise new issues. Indeed, this jurisdiction is an extension of the power of appellate courts to ask questions of the parties (see W. (G.), at para. 17). The issue on this appeal is not whether appellate courts can raise new issues, but when and in what circumstances will it be appropriate for an appellate court to do so.
 There are two potentially competing considerations at the heart of the issue in this case. First, the adversarial system, which is a fundamental tenet of our legal system. Second, the role of the courts to ensure that justice is done.
 Our adversarial system of determining legal disputes is a procedural system “involving active and unhindered parties contesting with each other to put forth a case before an independent decision-maker” (Black’s Law Dictionary (9th ed. 2009), sub verbo “adversary system”). An important component of this system is the principle of party presentation, under which courts “rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present” (Greenlaw v. United States, 554 U.S. 237 (2008), at p. 243, per Ginsburg J.).
 A fundamental reason for maintaining this system is to ensure that judicial decision-makers remain independent and impartial and are seen to remain independent and impartial. When a judge or appellate panel of judges intervenes in a case and departs from the principle of party presentation, the risk is that the intervention could create an apprehension of bias. This kind of departure from the usual conduct of an appeal could lead the court to be seen to be intervening on behalf of one of the parties, thus impugning the impartiality of the court. As this Court has said, “[it] is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” (Brouillard v. The Queen, 1985 CanLII 56 (SCC),  1 S.C.R. 39, at p. 43, citing R. v. Sussex Justices, Ex parte McCarthy,  1 K.B. 256, at p. 259). It is for this reason that an important tenet of our appellate system is for the court to respect the strategic choices made by parties in framing the issues (see W. (G.), at paras. 17-18).
 On the other hand, courts also have the role of ensuring that justice is done. As Lord Denning explained in the context of trial judges in the United Kingdom: “. . . a judge is not a mere umpire to answer the question ‘How’s that?’ His object above all is to find out the truth, and to do justice according to law. . .” (Jones v. National Coal Board,  2 All E.R. 155 (C.A.), at p. 159 (emphasis added)). This proposition is no less true of appellate judges. Meaningful appellate review assesses the correctness of a lower court decision, both on errors of law and palpable overriding errors of fact (see R. v. Sheppard, 2002 SCC 26 (CanLII), 2002 SCC 26,  1 S.C.R. 869, at paras. 25 and 28; and Housen v. Nikolaisen, 2002 SCC 33 (CanLII), 2002 SCC 33,  2 S.C.R. 235, at paras. 1 and 4). I accept the submission of the intervener the Attorney General of Alberta that “for ‘justice in fact to be done,’ judges must sometimes ‘intervene in the adversarial debate’” (I.F., at para. 16, citing Brouillard, at p. 44).
 The question then is how to strike the appropriate balance between these competing principles. Appellate courts should have the discretion to raise a new issue, but this discretion should be exercised only in rare circumstances. An appellate court should only raise a new issue when failing to do so would risk an injustice. The court should also consider whether there is a sufficient record on which to raise the issue and whether raising the issue would result in procedural prejudice to any party. This test is sufficiently flexible while also providing for an appropriate level of restraint to address the tensions inherent in the role of an appellate court.
 At all times this discretion is limited by the requirement that raising the new issue cannot suggest bias or partiality on the part of the court. Of essence here is that courts cannot be seen to go in search of a wrong to right. This jurisdiction should be exercised with caution. Appellate courts have the discretion to raise a new issue where justice requires it, but this discretion is restrained in order to maintain the impartiality of the decision‑maker as required by our adversarial system.
(a) Whether Failing to Raise the Issue Would Risk an Injustice
 The fundamental consideration for an appellate court in determining whether to raise a new issue is whether the failure to do so would risk an injustice.
 There are some situations where the potential for injustice will be more self-evident. As Mr. Song, counsel for Mr. Mian submits, there are a number of situations where it will be appropriate for an appellate court to raise an issue in order to prevent or rectify an injustice. Indeed, the parties to this appeal agree that appellate courts can intervene to assist self-represented litigants to ensure that the proceedings are fair (see W. (G.), at para. 18), although this assistance has neutrality-based limits and a judge “must exercise great care not to descend from the bench and become a spectre at the accused’s counsel table, placing himself ‘in the impossible position of being both advocate and impartial arbiter’” (R. v. Phillips, 2003 ABCA 4 (CanLII), 2003 ABCA 4, 320 A.R. 172, at para. 24, per Fruman J.A., aff’d 2003 SCC 57 (CanLII), 2003 SCC 57,  2 S.C.R. 623, citing R. v. Taubler reflex, (1987), 20 O.A.C. 64, at para. 30). In the criminal context, other examples may include where a miscarriage of justice may have occurred (see R. v. E.M.W., 2011 SCC 31 (CanLII), 2011 SCC 31,  2 S.C.R. 542, at paras. 4-5) or where a verdict or sentence appears to be clearly unreasonable (see W. (G.), at para. 19). It should be noted, however, that while these examples generally apply, they are inapplicable to this case, which was a Crown appeal from an acquittal.
 However, attempting to precisely define the situations which “would risk an injustice” would unduly limit the ability of appellate courts to intervene to ensure that justice is in fact done. Where there is good reason to believe that the result would realistically have differed had the error not been made, this risk of injustice warrants the court of appeal’s intervention.
 The determination of whether there is good reason to believe that a failure to raise a new issue “would risk an injustice” requires performing a preliminary assessment of the issue. The standard of “good reason to believe” that a failure to raise a new issue “would risk an injustice” is a significant threshold which is necessary in this context in order to strike an appropriate balance between the role of appellate courts as independent and impartial arbiters with the need to ensure that justice is done.
 At this stage, the merits of the issue will not yet have been argued or decided. As such, the assessment of the issue is not a “full-fledged review”, but rather is preliminary (W. (G.), at para. 20). In all cases where an appellate court is considering whether to raise a new issue, it would be inappropriate for the court to engage in any in-depth assessment of the merits of an issue at a stage where the parties remain ignorant of the issue. However, a court’s failure to raise a new issue will not risk an injustice in the absence of a preliminary indication that there is good reason to believe that an identified potential error would have affected the result.
 It is likely that issues identified by appellate courts will often fail to meet this “risk an injustice” factor. This will particularly be so where both parties are represented by counsel. It will only be in rare cases that counsel on both sides will have failed to identify an issue that would realistically have affected the result.
(b) Other Considerations
 Although consideration of whether the failure to raise a new issue in a given case would risk an injustice is left to the discretion of appellate courts, this discretion is not unlimited.
 First, it should go without saying that an appellate court cannot raise a new issue unless the court has the jurisdiction to consider the issue. Courts of appeal are statutory bodies and there is no inherent jurisdiction in any appeal court (see Kourtessis v. M.N.R., 1993 CanLII 137 (SCC),  2 S.C.R. 53, at p. 69, per La Forest J.; and W. (G.), at para. 8). For example, an appellate court’s jurisdiction on Crown appeals from acquittals is restricted to consideration of questions of law (Criminal Code, R.S.C. 1985, c. C-46, ss. 676(1)(a) and 686(4)). If an appellate court would not have the jurisdiction to consider an issue raised by one of the parties, then the court cannot raise the issue as a new issue on appeal.
 Second, in order to raise a new issue, an appellate court must be satisfied that there is a sufficient basis in the record on which to resolve the issue. “[T]here is always the very real danger that the appellate record will not contain all of the relevant facts, or the trial judge’s view on some critical factual issue, or that an explanation that might have been offered in testimony by a party or one or more of its witnesses was never elicited” (Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Clubs Ltd., 2002 SCC 19 (CanLII), 2002 SCC 19,  1 S.C.R. 678, at para. 32). The new issue must be “manageable on the evidentiary record” (ibid., at para. 33).
 Finally, an appellate court should consider whether there would be any procedural prejudice to either party. The procedures which should be followed when an appellate court exercises its discretion to raise a new issue are detailed further below. At this stage, it suffices to say that it will often be possible for appellate courts to ensure procedural fairness by adjusting the course of the appellate process, including granting an adjournment when an issue is identified at or in advance of a hearing or providing an opportunity for the parties to file written submissions. However, if the issue is raised in a way or at a stage that could result in procedural prejudice to either party, and such prejudice cannot be addressed through adjustments to the process, the appellate court cannot raise the issue.
(3) What Procedures Should Be Followed When an Appellate Court Exercises Its Discretion to Raise a New Issue?
 The risk of appellate courts appearing biased or partial will be reduced by the cautious exercise of the discretion to raise new issues, particularly when coupled with appropriate procedural safeguards. Requiring such safeguards ensures that there is no unfairness to the parties and no appearance of judicial partiality.
 The Crown submits that when an appellate court raises a new issue, there must be notification and opportunity to respond. I agree. With respect to notification, the court of appeal must make the parties aware that it has discerned a potential issue and ensure that they are sufficiently informed so they may prepare and respond. It goes without saying that all parties should be provided with proper notice. With respect to the response, there is no single model. As the Crown submitted, “the nature of the judicial issue and its relationship to the issues raised by the parties will determine whether counsel wishes to file further written argument, address the issue orally, or both” (R.F., para. 60).
 This approach is practical and recognizes that the appropriate procedure will vary depending on the context and the circumstances in a given case. For example, appellate courts may become aware of potential new issues at different points in time throughout the appeal process, including before, during or after the oral hearing. Requiring that strict procedural standards be followed would fail to recognize that the issue may arise in different circumstances in different cases.
 In my view, the following guidelines should be used to assist an appellate court in determining what the appropriate procedure should be on a case-by-case basis.
 First, notification of the new issue may occur before the oral hearing, or the issue may be raised during the oral hearing. If the issue is raised during the oral hearing, it may be necessary to grant an adjournment to ensure a full and fair hearing (E.M.W., at para. 4). If the issue is raised prior to the oral hearing, the parties may request an adjournment of the hearing and an extension of the filing deadlines for further written argument. At all times, the court should raise the issue as soon as is practically possible after the issue crystallizes so as to avoid any undue delay in the proceedings.
 Second, I agree with the submission of the Crown that the notification should not contain too much detail, or indicate that the court of appeal has already formed an opinion; however, it must contain enough information to allow the parties to respond to the new issue. Ultimately, the adequate content of notice will have to be determined on a case-by-case basis. It will be dependent on a number of factors, including the complexity of the issue and the obviousness of the issue on the face of the record.
 Finally, I agree with the submission of the Crown that the requirements for the response will depend on the particular issue raised by the court. Counsel may wish to simply address the issue orally, file further written argument, or both. As the Crown in this case says, this determination is properly in the hands of both the court and the parties. In my view, the underlying concern should be ensuring that the court receives full submissions on the new issue. If a party asks to file written submissions before or after the oral hearing, in my view, there should be a presumption in favour of granting the request. The overriding consideration is that natural justice and the rule of audi alteram partem will have to be preserved. Both sides will have to have their responses considered.
 The intervener the Attorney General of Alberta argues that, where a new issue is raised, the judge or panel that raised the new issue should recuse itself and the panel should be reconstituted as necessary. I cannot agree. Requiring recusal in all cases would be an onerous procedural requirement that would result in significant delay and would not be economical for the parties or the courts. Recusal is not necessary in every case and the need for a new judge or reconstituted panel should be determined on a case-by-case basis. Recusal should be rare and should be governed by the overriding consideration of whether the new issue or the way in which it was raised could lead to a reasonable apprehension of bias.