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Ontario and Canada
Appeal Court Dicta

Appeals and Judicial Review - Fresh Law - Policy

. Firsov v. Canada (Attorney General)

In Firsov v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered, and denied, an attempt to introduce fresh law issues in both a judicial review and a subsequent appeal of it's denial:
[49] Courts generally will not consider a new issue on judicial review where the issue could have been, but was not, raised before the administrative decision-maker: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paras. 21-26; Canada (Attorney General) v. Valcom Consulting Group Inc., 2019 FCA 1 at para. 36; Gordillo v. Canada (Attorney General), 2022 FCA 23 at para. 99. The reasons for this include the risk of prejudice to the responding party, and the potential to deny the reviewing court an adequate evidentiary record: Alberta Teachers’ at paras. 24-26.

[50] Similarly, appellate courts such as the Federal Court of Appeal will usually decline to consider a new issue on an appeal that was not raised in the court of first instance – the Federal Court in this case. In addition to the concern with respect to the adequacy of the evidentiary record, there is also a concern that the appellate court will not have the benefit of the views of the Court from which the appeal is taken on the question in issue: Oleynik v. Canada (Attorney General), 2020 FCA 5 at para. 72; Eli Lily Canada Inc. v. Teva Canada Limited, 2018 FCA 53 at paras. 44-45, leave to appeal to S.C.C. refused, [2018] 3 S.C.R. vi.
. Sorbam Investments Ltd. v. Litwack

In Sorbam Investments Ltd. v. Litwack (Ont CA, 2022) the Court of Appeal considered the policy underlying the fresh law doctrine:
[23] An appeal is not a forum for an appellant to advance a fundamentally different case than was advanced at trial. In the circumstances of this case, where the appellant did not plead or lead evidence at trial to support the arguments now raised, it is not appropriate for this court to exercise its discretion to allow the appellant to raise the new theory on appeal. It would be unfair to the respondent, and the evidentiary record from the trial is wholly inadequate to consider the issues: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at paras. 18-24; Frohlich v. Ferraro, 2017 ONCA 978, 85 R.P.R. (5th) 175, at para. 5.
. R. v. M.C.

In R. v. M.C. (Ont CA, 2019) the Court of Appeal set out factors to consider when deciding to permit fresh law on appeal:
First Time Arguments

[61] As a general rule, appellate courts will not permit an issue to be raised for the first time on appeal. The rule is grounded on several concerns:
i. prejudice to the opponent who lacks the opportunity to respond and adduce evidence at trial;

ii. absence of a sufficient record from which to make findings of fact essential to a proper determination of the issue;

iii. societal interest in finality and the expectation that criminal cases will be disposed of fairly and fully at first instance; and

iv. the important responsibility of defence counsel to make decisions that represent a client’s best interests and to advance all appropriate arguments throughout the trial.
See R. v. Reid, 2016 ONCA 524, 338 C.C.C. (3d) 47, at paras. 39-40, leave to appeal refused, [2016] S.C.C.A. No. 432, citing R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, at paras. 16-17, per L’Heureux-Dubé J. (dissenting in part).

[62] A party who seeks to raise a new issue on appeal must satisfy the appellate court that:
i. the evidentiary record is sufficient to permit the appellate court to fully, effectively and fairly determine the issues raised on appeal;

ii. the failure to raise the issue at trial was not due to tactical reasons; and

iii. no miscarriage of justice will result from the refusal to raise the new issue on appeal.
See Reid, at paras. 42-43, citing R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918, at p. 927, per L’Heureux- Dubé J. (dissenting).

[63] A decision whether to grant or refuse leave to a party to advance an argument for the first time on appeal involves the exercise of discretion informed by a balancing of the interests of justice as those interests affect all parties: Reid, at para. 44.
. Datta v. Eze

In Datta v. Eze (Ont CA, 2021) the Court of Appeal considered the policy reasons behind the law barring fresh law on appeal:
[9] As this court observed recently in 7550111 Canada Inc. v. Charles, 2020 ONCA 386, at para. 14, “the introduction of a new issue on appeal is usually prejudicial to the respondent and runs counter to the societal interest in finality and the expectation that cases will be disposed of fairly, fully and expediently at first instance.”


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