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Review - Fresh Law - Where Failure to Object. 1814219 Ontario Inc. v. 2225955 Ontario Ltd.
In 1814219 Ontario Inc. v. 2225955 Ontario Ltd. (Div Court, 2024) the Divisional Court held that a failure to object at trial being raised now as an appeal issue amounted to a 'fresh law' issue:[51] Second, there was no objection to the admissibility of the Documents at the trial. Trial counsel did not object to the admissibility of the Documents, other than Exhibit 6, as they were being admitted through witnesses who had received and processed and paid the amounts demanded in them. The one- page record constituting Exhibit 6 was not expressly entered for the truth of its contents. Even if this failure to object to the Documents as they entered evidence through viva voce testimony was a trial tactic, trial counsel did not make any submission at the end of trial that UM had improperly introduced alleged hearsay evidence.
[52] The failure to object means the Appellants are seeking to introduce a new issue on appeal. Appellate courts will generally refuse to entertain new issues on appeal due to the unfairness caused by forcing a party to respond to a new matter when they might have adduced evidence at trial had they known the matter would be an issue on appeal: see Whitby (Town) v. G & G 878996 LM Ltd., 2020 ONCA 654, at para. 9. In addition, the appellate court is deprived of the reasons of the lower court, which is in the best position to make findings of fact and to exercise discretion in all the circumstance of the case.
[53] I reject the Appellants’ submission that in the absence of an objection, the trial judge had an obligation as gatekeeper to ensure inadmissible evidence was not admitted at the trial. Trial judges cannot be expected to be omniscient. The Documents were admitted through viva voce evidence, there was no objection, and the Appellants’ pleadings did not plead a claim or defence that would have rendered the specific contents of the Documents controversial.
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