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Review (Appeal-JR) - Fresh Law - Other. 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 considers practice when a tribunal fails to consider an argued issue - that is, can it be argued as a fresh law issue on review (appeal/JR), or should it be remitted back to the tribunal for re-hearing on that issue (it's the latter):[29] Issue (6) was raised before the Commission but, as mentioned above, the Commission never dealt with it. The Federal Court dealt with it on its merits. On the authority of Alberta Teachers, it should not have done so: see paragraphs 26-27, above, in these reasons.
[30] The fact that issue (6) is a constitutional issue does not change the situation. 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.
[31] Where, as here, the administrative decision-maker failed to deal with a constitutional issue placed before it and an applicant submits that the administrative decision-maker had jurisdiction to decide it, an applicant should attack that failure and ask for the constitutional issue to be remitted back for redetermination. The Commission, not a reviewing court, has the power to consider whether it has jurisdiction to assess the constitutional issue and, if so, whether the constitutional issue, along with any other issues, should be sent to the Tribunal for adjudication. .... . Globe POS Systems v. Visual Information Products Inc.
In Globe POS Systems v. Visual Information Products Inc. (Div Court, 2022) the Divisional Court considered a 'fresh law' issue, justifying dismissing it with the argument that it "can only have the effect of encouraging extended interlocutory proceedings" (SS: I don't understand the logic of this point):Argument on Appeal
[13] On appeal, Globe now asserts a third cause of action, one upon which it did not rely before the Associate Justice: the tort of abuse of civil process. Globe acknowledges that “the tort of ‘abuse of process’ is not plead verbatim within Globe’s proposed counterclaim” but argues that “all of the components of the test for abuse of process are noted in its claim for damages under the tort of intentional and wrongful interference….” First, Globe fails to address the confirmation it provided to the Associate Justice of the nature of its proposed claims, quoted above. The Associate Justice was entitled to decide the motion before her on the basis on which it was argued. She made no error in failing to consider and decide whether Globe might have a tenable claim for the tort of abuse of civil process.
[14] In its factum, Globe argues that the Associate Justice erred in law in making the following statement:Commencing a lawsuit does not give rise to a civil cause of action. Issuing a civil claim is not an unlawful act, and it cannot give rise to civil liability. (Decision, para. 16) This statement, plucked from the context in which it was made, is not consistent with the test for the tort of abuse of civil process, which carves out a narrow exception to the general principle stated by the Associate Justice. The context in which this statement arises, however, was an analysis of the tort of unlawful interference with economic relations. Bringing a lawsuit, in that context, is not an “unlawful means”. It is a lawful means for seeking redress.
(a) No New Arguments on Appeal
[15] The appeal rests on an argument not made at first instance. The parties are represented by counsel, and the context in which the case arises is a “departing employee case’ that arises in our courts regularly. Extended interlocutory proceedings delay the timely and cost-efficient adjudication of disputes and permitting parties to raise entirely new arguments on appeal can only have the effect of encouraging extended interlocutory proceedings. Only in exceptional circumstances should this court entertain issues on appeal that were not raised below: Perez v. Governing Council of the Salvation Army of Canada (1998), 1998 CanLII 7197 (ON CA), 42 OR (3d) 229 at 233 (CA). . AE Hospitality Ltd. v. Canada (National Revenue)
In AE Hospitality Ltd. v. Canada (National Revenue) (Fed CA, 2020) the Federal Court of Appeal considered whether new case law introduced by the court itself, though on an already-argued issue, was unfairness:[17] Lastly, AE submits that the Tax Court denied it procedural fairness by relying on case law that was not submitted by the parties and without providing it an opportunity to make submissions. A breach of procedural fairness might arise where a judge’s reliance on additional authorities "“introduce[s] a principle of law that was not raised by either party expressly or by necessary implication, or [takes] the case on a substantially new and different analytical path”" (Heron Bay Investments Ltd. v. Canada, 2010 FCA 203, 405 N.R. 73 at para. 24). We do not agree that there was a breach of procedural fairness in this case. . Gordillo v. Canada (Attorney General)
In Gordillo v. Canada (Attorney General) (Fed CA, 2022) a panel of the Federal Court of Appeal dismissed an attempt by an appellant to introduce 'fresh law', even though an earlier intervention motion had been made and granted in reliance on the fresh law issues:[99] The reasonableness of an administrative decision cannot normally be impugned on the basis of an issue not put to the decision maker: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paras. 22-29; Canada (Citizenship and Immigration) v. R. K., 2016 FCA 272 at para. 6, leave to appeal refused, [2017] 1 S.C.R. xvi; Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156 at paras. 73-74, leave to appeal to S.C.C. sought, 39855 (25 October 2021). Rather, to respect legislative choice as to where primary decision-making authority lies, issues like those raised before us by the interveners should be decided at first instance by those in whom Parliament has vested responsibility to decide the merits – in this case, the Commissioner – not by a reviewing court or a court sitting on appeal from a reviewing court, whose roles are more limited. If the decision is then judicially reviewed, the reviewing court will have the benefit, in assessing reasonableness, of the decision maker’s reasons, experience and expertise. And if the matter then goes to appeal, the appellate court will have the further benefit (even if it is to decide on reasonableness de novo) of the reasons of the reviewing court: Oleynik v. Canada (Attorney General), 2020 FCA 5 at paras. 71-73, leave to appeal to S.C.C. refused, 39118 (15 October 2020); Bank of Montreal v. Canada (Attorney General), 2021 FCA 189 at para. 4, leave to appeal to S.C.C. sought, 39899 (December 8 2021).
[100] For these reasons, this Court should not consider the merits of the interveners’ international law and Charter arguments. I appreciate that the interveners were granted that status to address those very issues, and that our declining to decide them will cause disappointment. But it is for the panel hearing the appeal to decide, aided by its knowledge of the entire matter, what submissions it should entertain: Canada (Attorney General) v. Pictou Landing First Nation, 2014 FCA 21 at para. 27. . Beddows v. Canada (Attorney General)
In Beddows v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal denied a 'fresh law' attempt on discretionary grounds, here in an appeal from a judicial review application:[15] As concerns the Application Judge’s decision to decline to entertain the New Issues, we find that it was well within his discretion to do so since they were raised by the appellant during the hearing before the Federal Court without prior notice. Remedies which a court may grant on judicial review being, in essence, discretionary, it is well established that a reviewing court has the discretion to not consider an issue raised for the first time by a party on judicial review, where doing so would be inappropriate (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 22, quoting from Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, 122 D.L.R. (4th) 129 at para. 30). This could be the case where, absent special circumstances, arguments that were not raised in the Memorandum of Fact and Law are presented for the first time on oral argument (Del Mundo v. Canada (Citizenship and Immigration), 2017 FC 754, 282 A.C.W.S. (3d) 149 at paras. 12-13). . Cyr v. Batchewana First Nation of Ojibways
In Cyr v. Batchewana First Nation of Ojibways (Fed CA, 2022) the Federal Court of Appeal demonstrated how similar a 'failure to object' issue is to a 'fresh law' issue, here where the issue was procedural fairness at the tribunal below:[70] Allegations of procedural fairness, such as allegations of bias, must be raised to the decision-maker before they can be entertained by this Court (Nicole L. Tiessen Interior Design LTD. v. Canada, 2022 FCA 53, citing Athey v. Leonati 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 at paras. 51-52 and Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712 at paras. 36-39). ...
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