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Review (Appeal-JR) - Fresh Law - Basics (2). Zoghibi v. Air Canada
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a complaint by an airline passenger seeking 'financial relief' for alleged discrimination.
Here the court cites doctrine against hearing fresh law issues (while hearing it anyway):[26] The appellant now raises issues (4) and (5) for the first time on judicial review. Issues raised for the first time before a reviewing court should not be entertained: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 22-23.
[27] The rationale behind this — a sound one — is that the legislation governing an administrative regime gives the administrative decision-maker, not reviewing courts, the power to decide all of the issues going to the merits of cases. Although recently the Supreme Court has sometimes decided new issues going to the merits of cases (see, e.g., Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583), this should be seen as a one-off situation where it considered, rightly or wrongly, the question before it to be clear, not a displacement of the longstanding, unquestionably sound position set out in Alberta Teachers: Klos v. Canada (Attorney General), 2023 FCA 205 at para. 8; Terra Reproductions Inc. v. Canada (Attorney General), 2023 FCA 214 at para. 6; see also P. Daly, "“The Signal and the Noise in Administrative Law”" (2017) 68 University of New Brunswick Law Journal 68-86. . R. v. Mengistu
In R. v. Mengistu (Ont CA, 2024) the Ontario Court of Appeal dismissed a Crown criminal appeal, here regarding Charter s.11(b) ['trial delay'].
Here the court considers an issue of 'fresh law':[21] Generally speaking, if a new issue on appeal would expand the scope of litigation, the court should not permit the issue to be argued: R. v. Richards, 2015 ONCA 348, 323 C.C.C. (3d) 490, leave to appeal refused, [2015] S.C.C.A. No. 299, at para. 49. A party seeking to bring a new issue within the exception to this general prohibition must meet or satisfy three preconditions: (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 raise the new issue 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 para. 43. . 7868073 Canada Ltd. v. 1841978 Ontario Inc.
In 7868073 Canada Ltd. v. 1841978 Ontario Inc. (Ont CA, 2024) the Ontario Court of Appeal considered a 'fresh law' issue:[49] In my view, this argument by Gary Sugar is but one of several attempts by the appellants to try to recast their position at trial and raise issues on appeal that were not raised in the court below. An appeal is not the forum for parties to raise issues not raised in the court below: see e.g., Mroz v. Mroz, 2015 ONCA 171, 125 O.R. (3d) 105, at para. 83, citing 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. The attempts to do so are particularly problematic in a case such as this, involving a lengthy trial at which the trial judge was required to address a multitude of arguments, most of which the appellants do not attempt to revisit on appeal. . Gandhi v. Mayfield Arcadeium Holdings Ltd.
In Gandhi v. Mayfield Arcadeium Holdings Ltd. (Div Court, 2024) the Divisional Court cited 'fresh law' doctrine and exceptions thereto:Raising a New Issue on Appeal
[56] As mentioned above, the court raised with counsel the question of whether the appellant should be heard to raise s. 6 (1) of the statute for the first time on appeal. The presumptive rule is that parties may not raise on appeal new issues that were not argued below: Perez v. Governing Council of the Salvation Army in Canada, 1998 CanLII 7197 (ON CA). However, the case law recognizes that the court has the discretion to hear a matter raised for the first time on appeal.
[57] L’Heureux-Dubé J. set out the governing considerations in a criminal case in her dissent in R. v. Brown, 1993 CanLII 114 at para. 20:In summary, the following three prerequisites must be satisfied in order to permit the raising of a new issue, including a Charter challenge, for the first time on appeal. First, there must be a sufficient evidentiary record to resolve the issue. Second, it must not be an instance in which the accused for tactical reasons failed to raise the issue at trial. Third, the court must be satisfied that no miscarriage of justice will result from the refusal to raise such new issue on appeal. . Ontario (Health Insurance Plan) v. K.S.
In Ontario (Health Insurance Plan) v. K.S. (Div Court, 2024) the Divisional Court dismissed an OHIP appeal under Health Insurance Act [s.24(1,4)], where the primary issue was that a "vaginoplasty without penectomy" was "not a listed procedure in the Schedule of Benefits" "and is, therefore, not an insured service."
Here the court considers a 'fresh law' issue:[53] The remaining issue is whether we should allow OHIP to raise this issue for the first time on this appeal. While appellate courts generally do not entertain new issues on appeal, we have the discretion to consider an issue raised for the first time on appeal if it is in the interests of justice to do so and if the issue can be fairly addressed on the record from the Board: Kailman [sic] v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18.
[54] I am not satisfied it is in the interests of justice to allow OHIP to raise a new issue on appeal for at least three reasons.
[55] First, OHIP had an opportunity to raise this issue before the Board to defend the denial of funding.
[56] Second, the record from the hearing before the Board does not fully and fairly address OHIP’s argument about the application of s. 28.4(2)(a) of Regulation 552. Whether vaginoplasty without penectomy is excluded under s. 28.4 of Regulation 552 is a question of mixed fact and law. I do not agree with OHIP’s submission that the exclusion under s. 28.4 of Regulation 552 is functionally equivalent to the exclusion for experimental procedures. What is considered “experimental” is not necessarily the same as what is generally accepted as appropriate for a person in the same medical circumstances as K.S. An experimental procedure could be generally accepted as appropriate for a person in some circumstances. The fact that the legislature chose to use different language in ss. 24(1) and 28.4 of Regulation 552 suggests, as a matter of statutory interpretation, that the tests are different under the two provisions. OHIP did not adduce evidence on whether a vaginoplasty without penectomy is generally accepted as appropriate for patients in K.S.’s position. The focus of Dr. Krakowsky’s report and his viva voce evidence was on whether vaginoplasty without penectomy is considered experimental. Dr. Krakowsky was not asked to opine on whether vaginoplasty without penectomy would be generally accepted as appropriate for someone in K.S.’s position. As a result, K.S. was not given an opportunity to cross-examine OHIP’s expert on this issue or to adduce evidence in response.
[57] Third, OHIP has not adequately explained why it did not raise the application of s. 28.4(2)(a) of Regulation 552 before the Board. While there will be circumstances in which it is appropriate to allow an appellant to raise a new issue on appeal, to do so routinely will encourage piecemeal litigation which undermines the fairness and efficiency of the process.
[58] I, therefore, decline to exercise my discretion to allow OHIP to raise a new issue on appeal. . ABDOU v. Governing Council of UOT
In ABDOU v. Governing Council of UOT (Div Court, 2023) the Divisional Court states basics of the 'fresh law' prohibition:[70] New arguments, not raised at trial, can only be raised with leave of the court. This is a discretionary decision to be guided by the balancing of the interests of justice as they affect all parties. The appellate courts will not generally entertain entirely new issues on appeal because it would be unfair to spring a new argument upon a party at the appeal when evidence might have been led at trial, had these issues been live and may have been an issue on appeal: Kaiman v. Graham, 2009 ONCA 77 at para. 18; Bodnar v. Boban Estate, 2021 ONCA 746, at para. 13. . R. v. Salifu
In R. v. Salifu (Ont CA, 2023) the Court of Appeal considers 'provocation' [under CCC 232], which - if operative - can reduce murder to manslaughter. In these quotes the court considers the doctrine of 'fresh law', here in a Charter law context:Raising a Constitutional Argument for the First Time on Appeal
[14] Generally speaking, an issue cannot be raised for the first time on appeal. Whether to grant leave or not is a discretionary call based on a balancing of the impact on the parties and the interests of justice. In Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22, the Supreme Court set out the applicable test. It is a “stringent one” that directs us not to exercise our discretion “routinely or lightly”. As explained by Watt J.A. in R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 40, there are several reasons why leave should be granted only sparingly:i) prejudice to the other side who did not have the opportunity to respond and adduce evidence at trial;
ii) the absence of a sufficient record from which to make findings of fact essential to a proper determination of the issue;
iii) the 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. [15] The appellant, as the party who “seeks to escape the grip of the general prohibition against raising issues for the time on appeal”, must satisfy us that three conditions are met: first, that the evidentiary record is sufficient to permit us to fully, effectively, and fairly determine the issue raised on appeal; second, that the failure to raise the issue at trial was not due to tactical reasons; and third, that a miscarriage of justice will result from the refusal to raise the new issue on appeal: see Reid, at para. 43. . Law Society of Ontario v Schulz
In Law Society of Ontario v Schulz (Div Court, 2023) the Divisional Court cited this 'fresh law' quote from the Appeal Division of the Law Society Tribunal, but later excepted the fresh law prohibition on appeal as the underlying issue was jurisdictional, amongst other grounds:[13] In the Decision, the Appeal Division found that the LSO had failed to make a timely objection to the composition of the hearing panel. The Appeal Division found that the LSO did not meet the test to raise a new issue on appeal, which requires that the following three conditions be met:(i) There is a sufficient evidentiary record to resolve the issue;
(ii) The failure to raise the issue at the hearing was not a tactical one; and
(iii) The refusal to raise the new issue would result in a miscarriage of justice.
Byrnes v. Law Society of Upper Canada, 2015 ONSC 2939, at para. 35. ...
[38] Given that the composition of the hearing panel raised an issue of jurisdiction, it was appropriate for the LSO to raise the issue on appeal, despite having failed to make an objection before the hearing panel. In any event, in my view, the test for raising a new issue on appeal was met. Because the issue was a question of law and/or procedural fairness, the sufficiency of the evidentiary record was not an issue. Moreover, there was no reason to believe that the LSO’s failure to raise the issue at the hearing was a tactical one. Finally, the refusal to raise the new issue would have resulted in a miscarriage of justice. . Cannon v. Gerrits
In Cannon v. Gerrits (Div Court, 2022) the Divisional Court applied the doctrine of fresh law, with detailed justification:[29] Accordingly, it would not be proper to permit the appellants to raise the issue of the wording of Schedule ‘C’ for the first time on this appeal. In R. v. Reid, 2016 ONCA 524 (“Reid”), Watt J.A. stated, at para. 39:The general rule is that courts of appeal will not permit an issue to be raised for the first time on appeal: R. v. Warsing, 1998 CanLII 775 (SCC), [1988] 3 S.C.R. 579, [1998] S.C.J. No. 91, at para.16, per L’Heureux-Dubé J. (dissenting in part); R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918, [1993] S.C.J. No. 82, at pp. 923-24 S.C.R., per L’Heureux-Dubé J. (dissenting); Kaiman v. Graham, [2009] O.J. No. 324, 2009 ONCA 77, 245 O.A.C. 130, at paras. 18-19; and R. v. Roach, [2009] O.J. No. 662, 2009 ONCA 156, 246 O.A.C. 96, at para. 6. [30] The prejudice caused to the other party in such instance is obvious. As well, if a new ground is permitted, the reviewing court will be considering a different case than the judge making the initial determination.
[31] I would dismiss this ground of appeal. I have concluded that the appellants should not be permitted to raise the issue of the interpretation of Schedule ‘C’ for the first time on this appeal.
[32] I start by noting that counsel for the appellants was not counsel (or from the same firm) as counsel who appeared on the appeal.
[33] Counsel for the appellants on the appeal was unable to advise the court whether the wording of Schedule ‘C’ and the interpretation of the APS as a whole was raised by the appellants in the statement of defence, the motion materials, or in oral submissions.
[34] There is a significant difference between a reference to Schedule ‘C’ being contained in the evidence on the motion record and whether the specific language pertaining to the interpretation of the APS as a whole was brought to the attention of the motion judge. The fact that Schedule ‘C’ was set out in the record does not satisfy me that the issue of the wording and interpretation of the schedule now suggested by the appellants was before Edwards R.S.J.
[35] Furthermore, it is unclear whether counsel who represented the appellants on the motion failed to bring Schedule ‘C’ to the attention of the motion judge through ignorance, inadvertence, or decided as a matter of strategy not to aver to that provision in submissions to the court.
[36] In an adversarial system, the failure of a motion judge to “mine” the terms and conditions of an agreement, however long or short, to seek contract interpretation language potentially relating to issues that were not even raised by a litigant in the pleadings, or in the motion materials, does not constitute a reversible error of law.
[37] A determination of whether a judge committed a reversable error can only be made by examining whether that judge rendered a decision and made appropriate decisions based on the evidence that was brought to the attention of the judge. To suggest otherwise is to invite litigation chaos and uncertainty. If judges are required to look for additional language in a document that has not been clearly brought to their attention by a litigant with respect to an issue that was not put in issue on the motion, the decision-making process would be endless. That result runs contrary to the goals of our adversarial system.
[38] Furthermore, in order to be permitted to raise a new issue on appeal, Reid establishes at para. 43 that the appellant must satisfy the following three precautions:1. The evidentiary record must be significant to permit the appellant court to fully, effectively, and fairly determine the issue raised on appeal.
2. The failure to raise the issue at trial must not be done for 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. [39] The appellant fails in respect of all three of these preconditions.
[40] Firstly, the evidentiary record is not significant. It is unclear to what extent the issue of Schedule ‘C’ was raised, if at all.
[41] Secondly, on a review of the record, it is impossible to ascertain whether the approach of the appellants on the original motion was done for tactical reasons as described in Reid.
[42] Finally, and most significantly, no miscarriage of justice occurred. The appellant’s real-estate agents accepted the deposit cheque from the respondents. There was no effort made to communicate that Schedule ‘C’ was being enforced or relied on. . Koch v. Borgatti Estate
In Koch v. Borgatti Estate (Fed CA, 2022) the Federal Court of Appeal considers exceptions to the doctrine of fresh law:[67] While I am far from convinced that Rule 8 was a new argument, even if it were, that would not end the matter. Even on appeal, a new argument may be entertained if the interests of justice require it and the Court has a sufficient evidentiary record or findings of fact to do so: Quan v. Cusson, 2009 SCC 62 at paras. 36-37 and Eli Lilly Canada Inc. v. Teva Canada Limited, 2018 FCA 53 at para. 45, leave to appeal to SCC refused, 38077 (8 November 2018). . The Corporation of the City of Mississauga v. Information and Privacy Commissioner of Ontario
In The Corporation of the City of Mississauga v. Information and Privacy Commissioner of Ontario (Div Court, 2022) the Divisional Court considered an issue of fresh law in a judicial review, citing some useful SCC comments on fresh law as an issue [at para 29]:[27] In Xia v. Board of Governors of Lakehead University, 2020 ONSC 6150 at para. 42, this court summarized the rationale for declining to consider an issue that is raised for the first time on judicial review:The rationale for declining to hear such an argument rests on many considerations: showing respect for the legislative decision to confer first line responsibility on the administrative decision-maker to make such decisions; obtaining the benefit, for the court on judicial review, of a decision of the specialized decision-maker on the issue; avoiding any unfair prejudice to the responding party; and ensuring there is an adequate evidentiary record to decide the question (A.T.A. v. Alberta (Information and Privacy Commissioner), 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654 (S.C.C.) (CanLII) at paras. 22-26). [28] All of these concerns are present in this case. There is no reason why the City could not have raised this argument before the IPC, ensuring that this Court could have had the benefit of its decision on the matter.
[29] Reasonableness review must be alive to the context before the decision-maker, including the positions and submissions of the parties. As the Supreme Court held in Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900:[52] The Appeals Officer did not refer to s. 135(1). The foregoing argument was not made before him; it was raised for the first time before the Court of Appeal by an intervenor. The fact that the Appeals Officer did not refer to s. 135(1) in his analysis does not render his interpretation unreasonable. Administrative decision makers – and for that matter, judges – are not required, on their own account, to consider every aspect of the statutory context that might bear on their decision. In our system, the parties frame the arguments to be considered. Failure to consider a particular piece of the statutory context that does not support a decision maker’s statutory interpretation analysis will not necessarily render the interpretation unreasonable. The impact of such an omission will be case-specific and will depend on whether the “omitted aspect causes the reviewing court to lose confidence in the outcome reached.” (Citations omitted). [30] The failure of the IPC to consider s. 55 and s. 88(6.1) does not cause us to lose confidence in its decision. . DeGroot v. Licence Appeal Tribunal
In DeGroot v. Licence Appeal Tribunal (Div Court, 2022) the Divisional Court ruled against a fresh law attempt, arguing that it allowed parties to raise separate issues 'serially':[27] Effectively, at the Hearing, the Appellant conceded the point he argued on Reconsideration and now argues before this court, and so the Respondent and the Adjudicator did not address at the Hearing the contrary position the Appellant now advances in this court. Generally, this court will not permit new issues to be raised on appeal: Perez v. Governing Council of the Salvation Army of Canada (1998), 1998 CanLII 7197 (ON CA), 42 OR (3d) 229 (CA); Kaiman v. Graham, 2009 ONCA 77. Parties are expected to raise all of their issues at first instance: it offends the principle of finality to permit parties to raise issues serially, on appeal. It would have been in the discretion of the LAT, on reconsideration, to refuse to entertain this issue on the basis that the appellant had admitted at the Hearing that the benefit was $161.44 per week and not some greater amount. . Covenoho v. HomeLife Response Realty Inc.
In Covenoho v. HomeLife Response Realty Inc. (Div Court, 2022) the Divisional Court considered the test for fresh law on appeal:[31] The general rule is that appellate courts will not entertain entirely new issues on appeal. The rule is based on the principle that it is unfair to spring a new argument on a party when they might have been able to lead evidence about that argument at trial. Kaiman v. Graham 2009 ONCA 77 at para. 18.
[32] In Ontario Energy Savings LP v. 767269 Ontario Ltd. 2008 ONCA 350, the Court of Appeal stated (at para. 3):[3] In Ross v. Ross (1999), 1999 NSCA 162 (CanLII), 181 N.S.R. (2d) 22, the Nova Scotia Court of Appeal set out the test concerning receiving arguments for the first time on appeal. The court said that such an argument, “should only be entertained if the court of appeal is 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 trial”. The rationale for the principle is that it is unfair to permit a new argument on appeal in relation to which evidence might have been led at trial had it been known the issue would be raised. . Billimoria v. Mistry
In Billimoria v. Mistry (Ont CA, 2022) the Court of Appeal allows a fresh law issue:[24] Appellate courts will generally not entertain new issues on appeal, because of the unfairness of requiring a party to argue an issue on appeal that it had no chance to adduce evidence on at trial: Whitby (Town) v. G & G 878996 LM Ltd., 2020 ONCA 654, 5 M.P.L.R. (6th) 174, at para. 9. The burden is on the appellant to persuade the court that all the facts necessary to address the new issue are already before the court, and the decision as to whether to grant leave to allow a new argument is a discretionary decision to be guided by balancing the interests of justice: Kaiman v. Graham, 2009 ONCA 77, 75 R.P.R. (4th) 157, at para. 18.
[25] While the effect of s. 51 of the Land Titles Act was not raised at trial by different counsel for the respondents, this is a legal issue which does not depend on findings of fact, nor is there any suggestion that prior counsel failed to raise it for tactical reasons or that the interests of justice weigh in favour of not considering it. As such, and with the consent of the appellant, the respondents have satisfied their burden and we exercise our discretion to allow this issue to be raised on appeal: Kaiman. . 1027410 Ontario Inc. v. 2384589 Ontario Limited
In 1027410 Ontario Inc. v. 2384589 Ontario Limited (Ont CA, 2022) the Court of Appeal considered an issue of fresh law:[7] Appellate courts are reluctant to entertain new issues on appeal for reasons related to fairness. To obtain leave to advance a new theory to support its defence, the appellant must demonstrate that all facts necessary to address the point are before the court as fully as if the issue had been raised at trial: Kaiman v. Graham, 2009 ONCA 77, 75 R.P.R. (4th) 157, at para. 18; Sorbam Investments Ltd. v. Litwack, 2022 ONCA 551, at paras. 2, 23.
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