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Review (Appeal-JR) - Fresh Law - Charter. Sturgeon v. Canada (Attorney General)
In Sturgeon v. Canada (Attorney General) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal from a Federal Court JR, that brought against as SST-AD denial of leave to appeal from the SST-GD decision which "ruled that its jurisdiction was limited to determine whether the denial of EI benefits complied with the Employment Insurance Act".
The court applied (what I call) the doctrine of 'fresh law', here in a Charter context:[10] In our view, neither the Appeal Division nor the Federal Court erred by declining to consider the appellant’s Charter arguments. As noted by the Federal Court, Mr. Sturgeon did not advance any Charter claim in his appeal submissions to the Appeal Division, focusing instead on procedural fairness arguments. Neither the form completed by Mr. Sturgeon to launch his appeal to the Appeal Division nor his written submissions on the appeal mentioned the Charter arguments he had presented to the General Division, or ask the Appeal Division to reconsider the interpretation of the term misconduct. It is too late, on judicial review, to raise new arguments that were not raised before the administrative tribunal (see, for example, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paras. 22-23; Zoghbi v. Air Canada, 2024 FCA 123 at para. 30; Tan v. Canada, 2026 FCA 36 at para. 36).
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[12] .... Mr. Sturgeon had the opportunity to put forward his Charter argument by filing a Notice of Constitutional Question and initiating the Social Security Tribunal’s Charter appeal process, or at least by raising it in his application to the Appeal Division. He did not. It was not for the Appeal Division to do it on his behalf or, to use the language used by the Federal Court, "“to conjure up every conceivable Charter right or value that might be affected by their decision”" (at para. 56). . Tan v. Canada (Citizenship and Immigration)
In Tan v. Canada (Citizenship and Immigration) (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against a JR dismissal determining whether: "section 10 of the Citizenship Act, by which citizenship that was obtained by “false representation or fraud or by knowingly concealing material circumstances” may be revoked, violate paragraph 2(e) of the Canadian Bill of Rights".
The court considers a 'fresh law' issue, here in a Charter JR context - and, in the course of that, canvasses administrative tribunal Charter jurisdiction over 'questions of law' [paras 42-43]:A. Did the Federal Court err in concluding that it did not have jurisdiction to examine Ms. Tan’s constitutional challenges?
[32] The Federal Court made two preliminary findings regarding Ms. Tan’s constitutional arguments:The constitutional validity of sections 10 and 10.1 of the Citizenship Act was not raised before the Delegate; and
It would be inappropriate for the Federal Court to consider Ms. Tan’s constitutional arguments for the first time on judicial review. [33] I agree with the Federal Court that Ms. Tan did not put the constitutional validity of sections 10 and 10.1 of the Citizenship Act before the Delegate. Although Ms. Tan referred to the Bill of Rights and the Charter in support of her submissions to the Delegate, she did not request a declaration that the two provisions are constitutionally invalid. As the Federal Court stated, Ms. Tan’s 2015 written representations, in which she did raise a constitutional issue, were made in the course of her application for judicial review of a decision made under the citizenship revocation regime of the 2015 Citizenship Act, which regime was declared invalid in Hassouna. The 2015 submissions do not challenge the constitutionality of sections 10 and 10.1 of the current Citizenship Act. The Federal Court correctly concluded that Ms. Tan raised the constitutional issues at the heart of this appeal for the first time on judicial review.
[34] I do not, however, agree with the Federal Court’s second preliminary finding.
[35] Citing the Supreme Court’s decision in Alberta Teachers, the Federal Court found that a reviewing court will not in most cases exercise its discretion to consider a new issue in favour of an applicant on judicial review where the applicant did not argue the issue before the administrative decision maker. The Federal Court was not persuaded by the Respondent’s argument that the Court could address Ms. Tan’s constitutional arguments because the Delegate did not have jurisdiction to do so.
[36] It is well settled that a reviewing court has discretion "“not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so”" and, generally, will not exercise its discretion "“where the issue could have been but was not raised before the tribunal”": Alberta Teachers at paras. 22-23. A party cannot bypass an administrative process by applying for relief in a court of law where the particular decision maker has the jurisdiction to address the issue, including a constitutional issue: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16 at paras. 38-40 (Okwuobi); Zoghbi v. Air Canada, 2024 FCA 123 at para. 30 (Zoghbi), leave to appeal to SCC refused, 41471 (April 17, 2025); Erasmo v. Canada (Attorney General), 2015 FCA 129 at paras. 33, 38 (Erasmo).
[37] Conversely, if an administrative decision maker does not have the power or jurisdiction to decide constitutional questions, the general rule prohibiting a reviewing court from considering those questions at first instance is subject to an exception and the constitutional issue or issues may be raised before the reviewing court: Zoghbi at para. 30; Erasmo at paras. 33-38. The contrary result is untenable. If the administrative decision maker had no jurisdiction to consider a constitutional issue and it is not appropriate to raise the issue for the first time on judicial review, an applicant has no recourse and the legislation in question is not subject to efficient, independent oversight.
[38] In Zoghbi, this Court stated:[30] […] Where the issue is one of constitutional law and the administrative decision-maker has the jurisdiction to deal with it, the administrative decision-maker, as the merits-decider, is the forum to raise it. In those circumstances, an applicant on judicial review cannot bypass the power of a tribunal to decide an issue, and proceed directly to the reviewing court: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257 at paras. 28-55.
[Emphasis added.] [39] To similar effect, this Court has previously stated that "“a direct challenge in Court to the constitutionality of legislation is possible as long as the challenge is not ‘circumventing the administrative process’ or tantamount to a collateral attack on an administrator’s power to decide the issue…”": Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245 at paras. 46-47, citing Okwuobi at para. 54; see also Benito v. Immigration Consultants of Canada Regulatory Council, 2019 FC 1628 at paras. 55-56. This Court has also stated that the objection to first raising constitutional issues before a reviewing court, "“would not lie if the [administrative tribunal] did not have the jurisdiction to decide the constitutional issues”": Toussaint v. Canada (Attorney General), 2011 FCA 213 at para. 49, leave to appeal to SCC refused, 34446 (April 5, 2012), citing Okwuobi at paras. 28-34 and 38, and Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54 (Martin).
[40] In Goodman, a brief decision issued from the bench, this Court found that the appellant’s constitutional arguments regarding a 2013 amendment to section 25 of the IRPA should not have been considered by the Federal Court because they had not been raised before the administrative decision maker. It is not at all evident from the Court’s reasons that the jurisdiction of the decision maker was argued in the appeal and the decision in Goodman does not address whether the original decision maker was empowered to consider constitutional arguments. As a result, I do not read Goodman as stating that a reviewing court should not entertain a new constitutional issue on judicial review even where the administrative decision maker did not have jurisdiction to consider the issue.
[41] The question is then whether the Delegate was competent to hear Ms. Tan’s constitutional arguments. In other words, could the arguments have been addressed by the Delegate?
[42] Administrative tribunals with the power to decide questions of law by virtue of their enabling statute have presumptive jurisdiction to determine issues of constitutional law, including the constitutional validity of a provision of their enabling statutes: Martin at para. 34; York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 at para. 87, citing R. v. Conway, 2010 SCC 22 at para. 22. Presumptive jurisdiction to consider constitutional questions can only be rebutted "“by an explicit withdrawal of authority to decide constitutional questions or by a clear implication to the same effect, arising from the statute itself rather than from external considerations”": Martin at para. 42.
[43] The grant of jurisdiction to consider questions of law can be explicit or implicit: Martin at paras. 35-41, 48; Zoghbi at para. 43. Explicit authority is set out in the terms of the tribunal’s statutory grant of authority. The existence of implied jurisdiction requires consideration of the governing statute as a whole: Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 at para. 49 (Covarrubias). In Martin, the Supreme Court stated:[48] … Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself. […] If the tribunal is found to have jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision under the Charter. [44] Under section 10 the Citizenship Act, the Minister (typically a delegate of the Minister) is empowered to revoke a person’s citizenship if satisfied on a balance of probabilities that the person has obtained their citizenship by false representation or fraud or by knowingly concealing material circumstances. The section does not contain an express grant of jurisdiction to consider questions of law and, considering the citizenship revocation provisions of the Citizenship Act as a whole and the Minister’s statutory mandate, I cannot discern an implied grant of jurisdiction.
[45] Subsection 10(1) limits the Minister’s power to determining whether a person obtained their citizenship by false representation or fraud and, if so, whether the person’s personal circumstances warrant special relief. In my view, the Minister’s task is factual. Although the Minister makes a final determination of revocation in some cases, they are not required to decide questions of law in fulfilling their role. Rather, the Minister applies substantive rules to a set of facts.
[46] In terms of the Minister’s relationship with other actors in the statutory framework of revocation, a person faced with the revocation of their citizenship can forego the opportunity to have the revocation determined by the Minister, in which case the determination is made by the Federal Court (subsection 10(4.1) and section 10.1 of the Citizenship Act), thereby providing an alternate adjudicative avenue for consideration of constitutional issues. I would add that neither the Minister nor their delegate in a given case may have legal training. Practically, they may not have the capacity or expertise to assess and determine questions of law, including Charter questions: see, e.g. Covarrubias at paras. 51-56, and the Court’s consideration of the same questions in relation to an officer entrusted with the determination of a pre-removal risk assessment under the IRPA, a role that is similar to that of a delegate under section 10 of the Citizenship Act.
[47] I find that the Delegate was not empowered to adjudicate constitutional or Charter issues and that Ms. Tan cannot be said to be circumventing the administrative process by raising such issues before the reviewing court. It follows that Ms. Tan was not prohibited from making her constitutional arguments and requesting a declaration of invalidity for the first time before the Federal Court.
[48] Despite reaching the opposite conclusion, the Federal Court nonetheless considered the constitutional issues raised by Ms. Tan. This Court has the benefit of the Federal Court’s analysis and the parties’ extensive written and oral submissions regarding those issues and I find that it is appropriate and fair to consider Ms. Tan’s constitutional arguments on appeal.
[49] A note of caution. By far the better practice for an applicant is to raise all issues, including constitutional issues, before the administrative decision maker who can then determine if they have jurisdiction to address those issues. If the applicant fails to do so and the decision maker had the necessary jurisdiction, the applicant risks the reviewing court’s refusal to exercise its discretion to act as a decision maker of first instance. . Robinson v. The Corporation of the City of Pickering [inadequate grounding of Charter argument in admin context]
In Robinson v. The Corporation of the City of Pickering (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this brought against "a sanction imposed by Pickering’s City Council for breaches of the City’s Code of Conduct". These breaches related to applicant statements that the Integrity Commissioner found to be false, misrepresentative of the City's policy, and "which exposed the City to a potential breach of the Municipal Freedom of Information and Protection of Privacy Act".
Here the court addresses bare (in terms of evidence and jurisprudence) municipal administrative submissions that the applicant's Charter s.2(b) ['freedom of expression'] and s.15 ['discrimination'] has been breached:[18] With respect to s. 2(b), the applicant states the sanction penalizes her for communicating with her constituents and exposing municipal issues. She claims Council’s response was not a proportionate limit under s. 1 of the Charter. Under s. 15, she says she had been uniquely targeted and stripped of pay when she is a single mother and faces disproportionate financial hardship.
[19] The applicant did not raise either of these issues before the Integrity Commissioner despite being invited to provide submissions twice. She also knew from the previous application for judicial review cited above of the City’s position she was required to raise Charter issues before the Integrity Commissioner. In her factum before this court, her s. 15 claim totaled four lines and her s. 2(b) claim amounted to six lines.
[20] While an administrative decision-maker in some circumstances may have an obligation to identify impacted Charter rights, even where they are not raised before it, a Charter analysis cannot be completed where the claim is unknown and there is no relevant record before the decision-maker. In this case, the applicant neither raised nor provided any evidence that would have made a claim under s. 15 of the Charter relevant. This allegation is dismissed.
[21] With respect to s. 2(b), the applicant’s summary claim in this court does not merit remitting the matter to the Integrity Commissioner. The applicant’s analysis suggests she had an absolute right to express herself and does not admit of any weighing of Charter values with statutory objectives. Although the Integrity Commissioner did not directly address s. 2(b) rights, because they were not raised, the implication of the report was that the applicant’s speech was not of the type that lies at the heart of the values underlying freedom of expression. This is because the applicant was not engaging in genuine political debate. Instead, as found by the Integrity Commissioner, the applicant’s statements were in two cases “categorically false” and in one case “deliberately misrepresented” Council’s policy. The applicant’s conduct was “intentional” and had the goal of “discrediting and disparaging City staff, and casting doubt on and undermining the public’s trust in the City as a whole.”
[22] Considering these findings, it is implicit in the specific circumstances of this case that the City’s goal of ensuring City staff are treated with dignity and of ensuring and promoting public trust in the City, as required by the Code of Conduct, outweighed any limit on the applicant’s freedom of expression. . Swerdfiger v. Director of the Ontario Disability Support Program
In Swerdfiger v. Director of the Ontario Disability Support Program (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from SBT decisions "by the Director of the Ontario Disability Support Program (“ODSP”) in which the Director denied the appellant’s application for a special diet allowance (“SDA”) based on a medical condition known as “Avoidant/Restrictive Food Intake Disorder” (“ARFID”)".
Here the court denies the appellant's Charter s.7 and 15 argument as being 'fresh law':Does the Schedule violate the appellant's s.15 Charter rights?
[53] The appellant submits that the failure to fund an SDA for recipients with ARFID while funding one for recipients with anorexia nervosa constitutes discrimination contrary to s. 15 of the Charter. Section 15(1) reads:Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [54] Like many of the submissions mentioned earlier, this submission is also being made for the first time on this appeal. There is no sufficient record, nor are there reasons of the Tribunal to review on this issue. Further, unlike the submissions mentioned earlier, this submission requires that the appellant provide notice to the Attorneys General of both Ontario and Canada. Section 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43, requires that a party challenging the constitutional validity or constitutional applicability of an Act of the legislature serve a notice of constitutional question on both Attorneys General. The appellant has not done that.
[55] In these circumstances, I cannot conclude that the interests of justice require that we allow the appellant to raise this issue for the first time on appeal. It would be unfair to the federal and provincial governments to decide this issue without providing them an opportunity to be heard on the issue and we do not have a sufficient record upon which to decide it: Eaton v. Brant County Board of Education, 1997 CanLII 366 (SCC), [1997] 1 S.C.R. 241, at para. 48.
Did the Stage 2 decisions violate the appellant’s Charter rights?
[56] The appellant also submits that withholding an SDA for a recipient affected by ARFID constitutes a deprivation of her right to life, liberty, and security of the person under s. 7 of the Charter.
[57] Again, this was not raised before the Tribunal and no notice of this constitutional issue has been provided to either Attorney General. For the reasons expressed immediately above, I would decline to entertain this submission. . R. v. N.D.
In R. v. N.D. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal sexual assault appeal, here declining a 'fresh law' Charter application to vary his SOIRA order (the court noted that the defendant could re-apply for vary the SOIRA order at the trial level):[49] We decline to decide the appellant’s Charter application. In our view, the record is not sufficiently developed to make the factual findings required to determine the appellant’s claim for a personal remedy. The trial judge did not provide reasons for making the SOIRA order although she did make a finding in deciding whether to impose a conditional sentence or not, that the appellant “serving his sentence in the community would not endanger the safety of the community”. In so finding, she “look[ed] at the risk posed by himself on reoffending.” In addition, the appellant was 18 years old at the time of the offence and there was evidence that he had the support of his family; he had a positive record of service and employment with the military; and there were no other allegations of sexual impropriety since the offence date. However, the trial judge did not consider whether the risk posed in deciding whether to impose a conditional sentence could be equated with a general risk of recidivism, an issue that is contested by the parties. In our view, therefore, a court of first instance would be in a better position to make the determinations relating to the appellant’s s. 24(1) application on a fresh application with further evidence that may be tested by the parties.
[50] As noted above, while we decline to grant the Charter application, the appellant may seek an exemption pursuant to s. 490.04(1) in the court of first instance. Again, while, there is some evidence in the record that would support granting an exemption, there is no fresh evidence on the appeal, such as further ongoing efforts at rehabilitation, or opinion evidence from an expert who examined the appellant, which is one of the considerations under s. 490.12(4). We are therefore not in a position to determine whether the statutory criteria for granting an exemption are met in this case.
[51] Accordingly, while this court may have the authority pursuant to s. 24(1) of the Charter to vacate the SOIRA order, we are not satisfied that the record is sufficiently developed for us to do so. Given the importance of the issue, and the need for further evidence, the best forum to litigate whether the appellant should be granted any relief from the imposition of a SOIRA order is a court of first instance. This is not a case, like several others decided by this court, where we are simply being asked to reduce a lifetime SOIRA order to a 20-year SOIRA order: see e.g., R. v. P.W., 2023 ONCA 672; R. v. Rule, 2023 ONCA 31; and R. v. G.H., 2023 ONCA 89. The consequences of removing the SOIRA order altogether are significant and should be based on a proper evidentiary record.
[52] We therefore decline to deal with the Charter application, but this does not preclude the appellant from pursuing relief in a lower court under s. 490.04 of the Criminal Code for an exemption based on a proper evidentiary record. . R. v. Canadian Broadcasting Corporation
In R. v. Canadian Broadcasting Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an 'open court'-like order, here involving the Youth Criminal Justice Act (YCJA) "which limits access to records and information with respect to criminal proceedings against young persons".
Here the court considers the discretion of the below JR court (for a writ of certiorari) to decline to consider a Charter argument:(4) The SC judge did not err in declining to hear the appellants’ constitutional challenge
[96] The appellants contend that the SC judge erred in declining to hear their challenge to the constitutionality of the YCJA provisions limiting their right to access the Records and to publish information in them. They do not seek a new hearing but ask this court to declare that the SJ judge erred in dismissing their constitutional application.
[97] I would not grant this aspect of the appeal.
[98] I agree with the respondents that the applicable standard of review is not correctness. The SC judge’s decision not to hear the constitutional challenge was an exercise of judicial discretion. This court must accordingly determine whether he gave sufficient weight to all relevant considerations: Reza v. Canada, 1994 CanLII 91 (SCC), [1994] 2 S.C.R. 394, at p. 404.
[99] The considerations considered by the SC judge in declining to hear the constitutional challenge were appropriate. He considered that it is more “desirable that the initial inquiry and decision on these matters be argued, heard and decided in the court that administers youth justice.” This conclusion is consistent with the recognition in S.L. v. N.B., at para. 54, that Parliament has unambiguously placed the responsibility for overseeing access to youth court records on the shoulders of youth justice court judges and that they are uniquely suited to this role:Youth justice court judges are familiar with the principles and policies animating the Act. They are also familiar with the terms of the Act and the specific provisions sprinkled throughout the Act that touch on access issues. Youth justice court judges also know what records are generated by the youth justice court system, and have daily experience in considering and balancing the competing interests which may clash on access applications. [100] The SC judge further found that he should not hear the constitutional challenge because he did not have the full record before him. The respondents suggest that he could have simply ordered that the file be transferred. The SC judge was not, however, required to make such an order to accommodate the appellants’ failure to raise the constitutional issues at first instance. The appellants alternatively argue that the SC judge did not need the full record to consider the issues on a constitutional challenge. I do not agree. Charter analysis is contextual. It requires a comprehensive evidentiary record.
[101] The appellants contend that the SC should have given weight to their argument that the constitutional challenge should be heard in the Superior Court because it can declare a law invalid — the relief sought in their application — whereas the Youth Court cannot. As the SC judge correctly found, however, the Youth Court can determine the constitutionality of a provision for the purpose of deciding whether it should be enforced in a specific proceeding: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 15. . R. v. Brar
In R. v. Brar (Ont CA, 2024) the Ontario Court of Appeal grants a 'fresh law' Charter argument:(iii) Should the court consider the constitutional argument?
[36] The Crown advances the preliminary position that because the constitutional arguments were not raised at trial, this court should not address the merits of those arguments on appeal.
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[41] An appellant, with leave of the court, may raise issues, including constitutional issues, not raised at trial.[4] The appellant must convince the court that it is in the interest of the proper administration of justice to allow the appellant to advance the constitutional claim. In exercising its discretion, the appellate court will consider a variety of factors, including whether the issue can be properly addressed on the record before the appeal court, the risk of injustice should the court decline to hear the argument, and any prejudice to the opposing party should the court hear the argument. Different factors will have different weight in different situations: Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paras. 20-23; R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-44, leave to appeal refused, [2016] S.C.C.A. No. 432.
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[44] The constitutional issue raised by the appellants is an important one to the proper administration of justice. Provocation arises only in murder cases when the stakes, for the accused and the community, are obviously very high. Presently, the principle of horizontal stare decisis requires trial courts in Ontario to follow the decision in Mujber: see R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521, at para. 86. Absent adjudication by the Supreme Court of Canada, it is the responsibility of this court to settle outstanding questions of law for the province.
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[50] A refusal by this court to hear the constitutional challenge in Brar would run the risk of an injustice. If the argument is allowed to proceed and the court determines that the present s. 232(2) is unconstitutional, the appellant would arguably be entitled to a new trial where he would have the benefit of the broader provocation defence available under a constitutionally compliant s. 232(2): see generally Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd., 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 33.
[51] As we are satisfied there is a risk of a miscarriage of justice should we decline to hear the constitutional argument in Brar, we need not decide whether the refusal would also run the risk of a miscarriage of justice in the two other appeals. The constitutional arguments are the same in all three cases, and were effectively advanced as a single argument by counsel for the three appellants. Neither counsel for the appellants nor the Crown suggested that it might be appropriate to allow the constitutional challenge in one of the appeals but not in the others. As we have decided the relevant factors dictate that we hear the constitutional argument in Brar, we will hear it in all three appeals. . Ebadi v. Canada
In Ebadi v. Canada (Fed CA, 2024) the Federal Court of Appeal considered (and dismissed) an appeal from a lower court ruling that struck the appellant's Statement of Claim, which claim asserted several torts and Charter breaches against a non-unionized employer (CSIS) regulated under the FPSLRA.
Here, the court discusses it's 'fresh law' discretion, here regarding Charter issues first raised on appeal:[13] The decision whether to hear a constitutional challenge for the first time on appeal is discretionary, albeit one governed by specific considerations including the state of the record, fairness to all parties, the importance of having the issue resolved, the issue’s suitability for decision, and more broadly, the fair and efficient administration of justice. The burden is on the challenging party to show that hearing the issue would be appropriate and non-prejudicial (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3 at para. 23).
[14] The test is strict, and, as a general premise, courts are hesitant to address the constitutional validity of a provision without a sufficient factual context (Smith v. Canada (Attorney General), 2023 FCA 122, 2023 A.C.W.S. 2306 at para. 52; Filion v. Canada., 2017 FCA 67, 77 A.C.W.S. (3d) 211 at para. 14). A constitutional challenge raised for the first time on appeal may rest on an inadequate and potentially prejudicial evidentiary foundation and the appellate court is deprived of a trial judge’s reasoning and analysis (Lukács v. Canada (Citizenship and Immigration), 2023 FCA 36, 2023 A.C.W.S. 639 at paras. 73-74).
[15] I would not exercise my discretion to hear the constitutional argument raised by the appellant. The arguments were not developed before us in either memorandum and the Court does not have the benefit of the Federal Court’s consideration of the issues. It would be premature for us to offer an opinion on the constitutionality of an important statutory provision in these circumstances.
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