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Reviews (Appeal-JR) - Fresh Law - Exceptions. Adelaide Metcalfe (Township) v. Strathroy-Caradoc (Municipality) [jurisdiction]
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. . Shull v. Canada [self-presenting]
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. . Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada cited fresh law exceptions:[204] This Court has recently affirmed that parties will be permitted to raise new arguments on appeal only in exceptional circumstances, having regard to, among other things, “the state of the record, fairness to all parties, the importance of having the issue resolved by th[e] [c]ourt, its suitability for decision and the broader interests of the administration of justice” (R. v. J.F., 2022 SCC 17, at para. 41, citing Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 20). . Klos v. Canada (Attorney General)
In Klos v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a recent exception to the 'fresh law' [my term] doctrine:[8] The applicant also submits that the delay of the Board in this case constitutes an abuse of process. The applicant did not place this issue before the Board for consideration in his written submissions and, thus, it is a new issue in this Court that should not be heard: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. We do not consider that the Supreme Court’s recent willingness (in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21) to decide a case on the basis of a new issue, one of international law, for the first time on the third level of appeal should be taken to undercut the longstanding, unquestioned authority of Alberta Teachers’ Association. In any event, the threshold for success on such a point is very high and is not met here: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328. . Mason v. Canada (Citizenship and Immigration)
In Mason v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada sets out an effective exception to the fresh law prohibition applicable to tribunals, this for requirements of it's home statute:(c) Failure to Address Constraints Imposed by International Law
[104] Finally, the IAD failed to address the legal constraints imposed by international law on its interpretation of s. 34(1)(e). As I will explain, the IAD’s interpretation allows foreign nationals to be returned to countries where they may face persecution, contrary to Canada’s non-refoulement obligation in Article 33 of the Refugee Convention. By contrast, interpreting s. 34(1)(e) as requiring a nexus with national security or the security of Canada means that a removal order would not breach Article 33. Although this argument was not presented to the IAD, the IAD was required by its home statute to interpret and apply the IRPA in a manner that complies with Canada’s international human rights obligations, including Canada’s non-refoulement obligation under Article 33 of the Refugee Convention.
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