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Jurisdiction - Exception to Fresh Law Doctrine. Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality)
In Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality) (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal on final-interlocutory appeal route grounds, here where the Divisional Court erroneously quashed an OLT finding that it had "jurisdiction over a dispute" between two municipalities.
Here the court essentially sets up questions of 'jurisdiction' as an exception to the appellate fresh law doctrine, in which courts will not normally entertain fresh legal issues:[13] An appellate court is ordinarily reluctant to consider an issue not raised in the court below. In this case, however, the court cannot ignore the jurisdictional issue. Jurisdiction cannot be conferred by consent, nor by a party’s failure to raise the issue: J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, at paras. 24-25. Whether the Divisional Court had jurisdiction to hear the appeal from the Tribunal is determinative of this appeal.
[14] Moreover, the issue can be fully considered without adding anything to the record that was before the Divisional Court. This court is not being asked to address a new issue on a record that does not speak to that issue. Addressing the issue of whether the Divisional Court had jurisdiction does not prejudice Strathroy-Caradoc in any manner that cannot be properly addressed by an appropriate costs order: George v. Anishinabek Police Service, 2014 ONCA 581, 321 O.A.C. 391, at para. 8.
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