In Shull v. Canada (Fed CA, 2025) the Federal Court of Appeal notes the discretion of a decision-maker to raise issues of fresh law on appeal, where a party is self-presenting:
[47] It is true, as respondent’s counsel submitted, Mr. Shull did not expressly raise errors in the costs award in his notice of appeal to this Court. However, appellate courts have the discretion to consider new issues on appeal where failing to do so would risk an injustice: R. v. Mian, 2014 SCC 54 at paras. 41-42 [Mian]; Adamson v. Canada (Canadian Human Rights Commission), 2015 FCA 153 at para. 89, leave to appeal to SCC refused, 36630 (10 March 2016). Whether the failure to raise the new issue would do so depends on the circumstances, but appellate courts can intervene to assist an unrepresented litigant to ensure the proceeding is fair: Mian at para. 44. Intervention may also be justified where there is good reason to believe the result would have been different had the error not been made: Mian at para. 45. Mian seeks to strike a balance between the adversarial process and the appellate court’s duty to ensure that justice is done: paras. 37-41, 46; see also R. v. G.F., 2021 SCC 20 at para. 93.
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