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| firm:law:appeals [2024/11/08 16:20] – 192.168.134.1 | firm:law:appeals [2024/11/08 16:39] (current) – [Raising new issues on appeal] 192.168.134.1 |
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| ===== Raising new issues on appeal ===== | ===== Raising new issues on appeal ===== |
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| | Although new issues can be raised on appeal, appellate courts restrict parties' ability to raise such issues, especially when issues require additional evidence that was not adduced at the trial level. |
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| | An appellant can only raise new issues on appeal with leave of the appellate court (//Bodnar v. Boban Estate//, 2021 ONCA 746, [[https://canlii.ca/t/jjxx2#par13|para. 13]]). |
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| | Granting leave to raise new issues on appeal is at the appellate court's discretion (//Bodnar v. Boban Estate//, 2021 ONCA 746, [[https://canlii.ca/t/jjxx2#par13|para. 13]]), and exercise of that discretion is typically reserved to the panel hearing the appeal. |
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| | The Court's exercise of discretion is based on the rule set out in //Ross v. Ross//, 1999 NSCA 162, [[https://canlii.ca/t/1f8qr#par34|para. 34]]: |
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| | ''The general principle concerning arguments raised for the first time on appeal is that they should only be entertained if the Court of Appeal is persuaded that all the facts necessary to address the point are before the Court as fully as if the issue had been raised at trial. The rationale of the principle is that it is unfair to permit a new argument on appeal in relation to which evidence might have been led at trial had it been known the issue would be raised: see e.g., The Tasmania, (1890) 15 App. Cas. 223 (H.L.) at 225; S-Marque Inc. v. Homburg (1999), 1999 NSCA 59 (CanLII), 176 N.S.R. (2d) 218 (C.A.); O’Bryan v. O’Bryan (1997), 1997 CanLII 4045 (BC CA), 97 B.C.A.C. 62 (C.A.).'' |
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| | This rule has been adopted by the Ontario Court of Appeal (see 2021 ONCA 746, //supra//; //Ontario Energy Savings L.P. v. 767269 Ontario Ltd.//, [[https://canlii.ca/t/1wsq7|2008 ONCA 350]]). |
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| | The Ontario Court of Appeal summarized the law on this issue in //Kaiman v. Graham//, 2009 ONCA 77, [[https://canlii.ca/t/228tk#par18|para. 18]]: |
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| | ''The general rule is that appellate courts will not entertain entirely new issues on appeal. The rationale for the rule is that it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at trial if it had been known that the matter would be an issue on appeal: Ontario Energy Savings L.P. v. 767269 Ontario Ltd., 2008 ONCA 350, at para. 3. The burden is on the appellant to persuade the appellate court that “all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”: Ross. v. Ross (1999), 1999 NSCA 162 (CanLII), 181 N.S.R. (2d) 22 (C.A.), at para. 34, per Cromwell J.A.; Ontario Energy Savings at para. 3. This burden may be more easily discharged where the issue sought to be raised involves a question of pure law: see e.g. R. v. Vidulich (1989), 1989 CanLII 231 (BC CA), 37 B.C.L.R. (2d) 391 (C.A.); R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918, per L’Heureux-Dubé J., dissenting. In the end, however, the decision of whether to grant leave to allow a new argument is a discretionary decision to be guided by the balancing of the interests of justice as they affect all parties: R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, per L’Heureux-Dubé J., dissenting; R. v. Sweeney (2000), 2000 CanLII 16878 (ON CA), 50 O.R. (3d) 321 (C.A.); Vidulich at pp. 398-99.'' |
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