In Bell Canada v. Adwokat (Fed CA, 2023) the Federal Court of Appeal considers a 'fresh remedy' on appeal situation, here where the issue was whether the court could increase a contempt penalty that had not been argued in the lower court:
[31] A court cannot raise a new legal issue in its decision that was not raised by either party or by necessary implication or seek to award remedies that were not requested without first raising the issue with the parties and giving them the right to make submissions: R. v. Mian, 2014 SCC 54, 377 D.L.R. (4th) 385 at paras. 41, 54; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, 384 D.L.R. (4th) 1 at para. 26; Adamson v. Canada (Human Rights Commission), 2015 FCA 153, 255 A.C.W.S. (3d) 956 at para. 89; CSX Transportation, Inc. v. ABB Inc., 2022 FCA 96, [2022] F.C.J. No. 870; Vidéotron Ltée c. Technologies Konek Inc., 2023 CAF 92, [2023] A.C.F. no 576).
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