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Review (Appeal-JR) - Fresh Law - Basics
COMMENT
A 'fresh law' (my term) issue occurs when a party tries to raise new legal issues on review (appeal or judicial review) for the first time - ie. that they did not already raise at the trial/hearing/admin level.
It's very similar to the recognized trial/hearing principle that a party may not appeal on the basis of evidence being admitted where they did not 'object' to the disputed evidence admission at trial. It's also the legal corollary of 'fresh evidence', which is a well-known issue of appeal (and now judicial review) law. "Fresh evidence" is about trying to admit new evidence at the appeal-JR stage when, for whatever reason, the party didn't get it in the trial/hearing/admin stage.
MORE CASES
Part 2
. Shoan v. Canada (Attorney General)
In Shoan v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal denied an attempt to raise fresh law issues at an appeal of a judicial review loss:[13] The appellant also wishes to raise a new issue on appeal that he did not raise in his notice of application in the Federal Court, namely the Governor in Council’s alleged obligation to investigate racial bias. New issues should generally not be heard by a reviewing court: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 22-26. This is doubly so in an appeal from the judgment of a reviewing court: Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712; Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678. For both these reasons, we exercise our discretion against entertaining this new issue. . R. v. Scott
In R. v. Scott (Ont CA, 2022) the Court of Appeal considered an issue of fresh law:[45] The appellant raised for the first time in oral submissions on this appeal, the fact that the appellant was found with no keys on his person at the time of the search of his person. No reason was provided for the failure to raise the issue before.
[46] As Doherty J.A. held in R. v. Rollocks (1994), 1994 CanLII 8728 (ON CA), 19 O.R. (3d) 448, 91 C.C.C. (3d) 193 (C.A.), at p. 453:Normally where an issue is not raised at trial it cannot be raised on appeal. Appellate courts sit in review of decisions made in trial courts. The requirement that issues be raised and adjudicated upon at trial before they will be considered on appeal is inherent in the appellate function. [47] The discretion to hear and decide new issues on appeal “is not exercised routinely or lightly”: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 5 and 22. . R. v. Charity
In R. v. Charity (Ont CA, 2022) the Court of Appeal considered an issue of fresh law in a criminal context:[28] Generally speaking, if a new issue on appeal would expand the scope of the litigation, the court should not permit the issue to be argued: R. v. Richards, 2015 ONCA 348, 323 C.C.C. (3d) 490, at para. 49. In making this determination, a court should consider whether the interests of justice require an exception to the normal and accepted course of litigation and whether there is a proper or sufficient factual and evidentiary record to determine the issue: Perez (Litigation Guardian of) v. Salvation Army in Canada (1998), 1998 CanLII 7197 (ON CA), 42 O.R. (3d) 229 (C.A.), at p. 233. . Gordon Dunk Farms Limited v. HFH Inc.
In Gordon Dunk Farms Limited v. HFH Inc. (Ont CA, 2021) the Court of Appeal considered an exception to the 'no fresh law on appeal' rule:[24] This issue was not raised before the motion judge. He did not address it in his reasons. The respondents HFH and McNeil submit that the court should therefore not entertain the argument on the appeal. While the court will not, in most cases, entertain an argument on appeal that was not raised at the original hearing, it can do so where the record is sufficient and the issue is one of law: Becker v. Toronto (City), 2020 ONCA 607, 452 D.L.R. (4th) 679, at paras. 39-40; Svia Homes Limited v. Northbridge General Insurance Corporation, 2020 ONCA 684, 7 C.C.L.I. (6th) 1, at paras. 23-28. In this case, the issue is the proper interpretation and application of the Act, and the record below is complete. In these circumstances, in my view, it is appropriate to address the issue on this appeal. . Bodnar v. Boban (Estate)
In Bodnar v. Boban (Estate) (Ont CA, 2021) the Court of Appeal stated the basics of allowing fresh law on appeal:[13] These new arguments can only be raised with leave of the court: Kaiman v. Graham, 2009 ONCA 77 at para. 18. The decision of whether to grant leave to allow a new argument is a discretionary decision to be guided by the balancing of the interests of justice as they affect all parties. The general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at trial if it had been known that the matter would be an issue on appeal: Kaiman v. Graham at para. 18 citing Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350, at para. 3.
[14] The first two of these arguments, together with the appellant’s principal argument on this appeal, are based on circumstances that differ profoundly from the alleged oral agreement regarding the applicable interest rate asserted in the appellant’s pleadings. It would be contrary to the interests of justice in this case to entertain the appellants’ new arguments. No explanation was provided for the appellant’s failure to raise these arguments before the motion judge. The court will not grant leave in the absence of a reasonable explanation for the reason where, as in this case, the respondent may be prejudiced by an inability to adduce evidence that would address these new arguments. The appellant is unable to persuade the court that “all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”: see Ross v. Ross (1999), 1999 NSCA 162 (CanLII), 181 N.S.R. (2d) 22 (C.A.), at para. 34, per Cromwell J.A.; Ontario Energy Savings at para. 3. . R. v. Bielli
In R. v. Bielli (Ont CA, 2021) the Court of Appeal cited the test for arguing fresh law on appeal, which is discretionary:[52] Clearly this is a new argument raised on appeal. There is a general prohibition against such arguments on appeal: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, leave to appeal refused, [2016] S.C.C.A. No. 432, at paras. 37-41. To avoid the general prohibition, the appellant must satisfy three pre-conditions:i. the evidentiary record must be sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal;
ii. the failure to raise the issue at trial must not be due to tactical reasons; and
iii. the court must be satisfied that no miscarriage of justice will result from the refusal to consider the new argument on appeal. The decision to consider the new argument is discretionary and informed by a balancing of the interests of justice as they affect all parties: see Reid, at paras. 42-44. . Whiteman v. Iamkhong
In Whiteman v. Iamkhong (Ont CA, 2015) the Court of Appeal cited the criteria that allow an issue, unargued at the lower proceeding, to be raised for the first time on appeal:[6] In Kaiman v. Graham, 2009 ONCA 77 (CanLII), this court stated, at para. 18:The general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at trial if it had been known that the matter would be an issue on appeal… The burden is on the appellant to persuade the appellate court that “all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”… In the end, however, the decision of whether to grant leave to allow a new argument is a discretionary decision to be guided by the balancing of the interests of justice as they affect all parties… . R v Giamou
In R v Giamou (Ont CA, 2017) the Court of Appeal states the general rule that legal positions not properly and previously advanced at trial may not be newly raised on appeal unless specific criteria are met:[9] In R. v. Reid, 2016 ONCA 524 (CanLII), 132 O.R. (3d) 26, at para. 39, this court confirmed the general rule that courts of appeal will not permit an issue to be raised for the first time on appeal. The rationale is based on: (i) prejudice to the other side which lacks the opportunity to respond and adduce evidence; (ii) the absence of a sufficient record; (iii) the societal interest in finality and the expectation that criminal cases will be disposed of at first instance; and (iv) the responsibility of defence counsel to advance all appropriate arguments at first instance: Reid, at para. 40.
[10] The burden is on the party who seeks to raise the new issue to satisfy three preconditions:
1. the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;
2. the failure to raise the issue at trial must not be due to tactical reasons; and
3. the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal: Reid, at paras. 42-43. . Van Galder v. Economical Mutual Insurance Company
In Van Galder v. Economical Mutual Insurance Company (Ont CA, 2016) the Court of Appeal succinctly set out the conditions required before a new legal argument (one not advanced at trial) will be considered by an appeal court:[79] It is well established that this court should only receive an argument for the first time on appeal if persuaded that all of the facts necessary to address the point are before the court as fully as if the issue had been raised at first instance, and that the party against whom the issue is raised will not be prejudiced by it: Shtaif v. Toronto International Publishing Co. Ltd., 2013 ONCA 405 (CanLII), 306 O.A.C. 155, at para. 46. . Quickie Convenience Stores Corp. v. Parkland Fuel Corporation
In Quickie Convenience Stores Corp. v. Parkland Fuel Corporation (Ont CA, 2020) the Court of Appeal cautions on the limitations of the appeal principle that issues not before the lower court may not be heard om appeal:[38] In my view, the respondent takes an unduly restrictive approach to whether this is the type of argument that this court will generally decline to hear for the first time on an appeal. To begin, the principle that courts should generally decline to hear a new issue on appeal is not an absolute rule. It is a discretionary decision to made based on the facts of the individual case: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18. Further, it is clear that the issue of whether the respondent unreasonably withheld consent to an assignment of the credit/debit card agreements was squarely before the application judge. The fact that the appellant invokes different authority now, than it did before the application judge, does not offend the principle: R. v. Sweeney (2000), 2000 CanLII 16878 (ON CA), 50 O.R. (3d) 321 (C.A.) at para. 32. . 7550111 Canada Inc. v. Charles
In 7550111 Canada Inc. v. Charles (Ont CA, 2020) the Court of Appeal stated the rule that issues raised for the first time on appeal may not be heard:[14] As a general rule, appellate courts do not permit an issue to be raised for the first time on appeal: see Kaiman v. Graham, 2009 ONCA 77, 75 R.P.R. (4th) 157, at para. 18; R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 37-44, leave to appeal refused, [2016] S.C.C.A. No. 432. The reasons for this general prohibition are obvious. Typically, the evidentiary record is inadequate to permit an appellate court to properly determine the new issue. Moreover, 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. Accordingly, the burden falls squarely on the appellant to satisfy the court that it should exercise its discretion to permit the argument to be advanced. . Enbridge Gas Inc v. Ontario Energy Board
In Enbridge Gas Inc v. Ontario Energy Board (Div Ct, 2020) the Divisional Court considers when an appeal court may hear an issue despite it not being raised before the tribunal below:[25] There is no dispute that the appellant raises a new issue on this appeal. In its submissions to the OEB on the effective date, the appellant did not argue that the timing of its application was irrelevant to determining the effective date. Rather, it argued that it made its application as soon as practicably possible. Therefore, the OEB did not have an opportunity to consider the relevance of the timing of the application in the context of this matter.
[26] Relying on this Court’s recent decision in Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), the OEB argues that the Court should decline to hear the appeal because the OEB should have been given an opportunity to consider the issue. In response, relying on the Supreme Court of Canada’s decision in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, the appellant argues that the Court should deal with its appeal because it only raises a question of law and because the OEB has dealt with the relevance of the timeliness of applications in other decisions.
[27] In Planet Energy, this Court considered whether it should deal with an appeal from a decision of the OEB that raised a new issue. In that context, the Court reviewed the principles that apply when the Court considers whether to hear an appeal from a tribunal decision that raises an issue that was not argued before the tribunal (see paras. 17-20):[17] The Board argues that this Court should exercise its discretion to refuse to determine the limitation issue, given that it was never raised before the Board and is raised for the first time on appeal. The Board relies on Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654. This was an application for judicial review in which the Supreme Court of Canada discussed when it is appropriate for a reviewing court to address an issue that was not before the administrative tribunal. The Board argues that the reasoning is applicable in the present case, even though this is an appeal rather than an application for judicial review.
[18] In Alberta (Information and Privacy Commissioner), the Supreme Court stated that a reviewing court has the discretion to address a new issue raised on judicial review. However, the Court observed that the discretion will generally not be exercised in favour of hearing argument on that issue if the issue could have been raised before the tribunal and was not raised (at para. 23).
[19] The Supreme Court discussed the rationales for this rule. First, given that the Legislature has designated the tribunal to be the decision maker of first instance, the courts should respect the legislative choice (at para. 24). Where the issue relates to the tribunal’s specialized functions, the Court should not ignore the benefit of the having tribunal’s views on the issue. Second, the Court notes that there can be prejudice to the opposing party if it has not had an opportunity to present evidence on this issue, and the reviewing court does not have an adequate evidentiary record (at para. 26).
[20] Courts hearing appeals have also stated that they have the discretion to refuse to hear argument on an issue not raised at first instance (Rowan v. Ontario Securities Commission, 2012 ONCA 208 at paras. 70-71, 77, a case dealing with an appeal from the Ontario Securities Commission). In the civil case of Kaiman v. Graham, 2009 ONCA 77, the Court of Appeal stated (at para. 18):The burden is on the appellant to persuade the appellate court that “all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial” … [28] In Planet Energy, at para. 26, the Court went on to decline to hear the appeal, in part because “the Board is an expert and highly specialized tribunal that can assist the Court in the exercise of statutory interpretation by providing context and a consideration of the impact of various interpretations”.
[29] In this case, while we agree that the appellant should have raised the issue before the OEB, we nevertheless find that this is an exceptional case in which it is appropriate for the Court to decide the appeal. In Alberta (Information and Privacy Commissioner), at para. 28, the Supreme Court found that it was appropriate to deal with an issue not raised on an application for judicial review in the following circumstances:. . . In this case, the rationales for the general rule have limited application. Both parties agreed that the Commissioner had expressed his views in several other decisions. Therefore, the Commissioner has had the opportunity to decide the issue at first instance and we have the benefit of his expertise, albeit without reasons in this case. No evidence was required to consider the timelines issue and no prejudice was alleged. Rather, it involved a straightforward determination of law, the basis of which was able to be addressed on judicial review, irrespective of what is the appropriate standard of review. [30] Here, there are no facts in dispute that relate to the issue of whether the timing of the application is a relevant consideration. As reviewed above, this is a question of law.
[31] In addition, it is an issue the Board has already addressed in other cases. In its submissions on this issue, the appellant referred to three prior decisions of the OEB in which the Board found that the timing of an application is a relevant factor. In Ontario Power Generation, Energy Board 2013-0321, at pp. 131-139 (“OPG (2014)”), the Board addressed arguments essentially identical to the arguments made on this appeal about whether the effective date for rates has to be consistent with the beginning date for interim rates in circumstances where an application was filed late. The OEB relied on the reasoning in that decision in two subsequent decisions in which the same issue was raised: Independent Electricity Operator, Energy Board 2015-0275, at p. 4, and OPG (2018).
[32] Accordingly, the Court has the benefit of the OEB’s reasoning in prior decisions on this issue.
[33] Finally, and most significantly, given that similar issues have been raised at least three times previously before the OEB, it appears that this is a recurring issue which would benefit from a determination by this Court. This should not be taken as permission in the future to bypass the OEB when raising significant issues on appeal, including issues of law. As this Court stated in Planet Energy, despite the correctness standard of review on questions of law in the context of statutory appeals recently introduced in Vavilov, the Court nevertheless benefits from a specialized tribunal’s interpretation of its own legislation. However, given the unique circumstances of this case, we find that it is appropriate for the Court to decide the issue raised on the appeal. . Ferguson v. Birchmount Boarding Kennels Ltd.
In Ferguson v. Birchmount Boarding Kennels Ltd. (Div Ct, 2006) the Divisional Court stated a form of the fresh law 'rule':[12] There are several problems with the position taken by the appellant on the appeal. Firstly, the issue of bailment was not argued by the appellants (the defendants) in the statement of defence or at trial. They relied upon and pleaded waiver based on the contract and the provisions of the Negligence Act, R.S.O. 1990, c. N.1. An appellate court will permit a new argument to be raised on appeal where the record in the court below is as complete as if the issue had been raised squarely at trial, and provided there is no prejudice to the other party (Braber Equipment Ltd. v. Fraser Surrey Docks Ltd., 1999 BCCA 579 (CanLII), [1999] B.C.J. No. 2360, 130 B.C.A.C. 307 (C.A.), at para. 3). In this case, the prejudice to the respondents in their not having done so, is manifest.
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