Raising New Issues On Appeal

• Published date: 21 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Torkin Manes LLP
• Author: Mr Marco P. Falco

After a lower court proceeding, lawyers may be tempted to devise new arguments on appeal in the hope of having an unfavourable decision overturned. However, the legal threshold for advancing novel positions on appeal in Ontario remains high.

Two decisions of the Ontario Court of Appeal, Kaiman v. Graham 2009 ONCA 77, and Whitby (Town) v. G & G 878996 LM Ltd. 2020 ONCA 654, show that the courts' hesitance to allow new appeal issues stems from a concern for fairness to the parties and the proper role of appellate judges.

The high threshold

A party seeking to raise new issues on appeal has a high onus. In order for the new issues to be considered, the appellant must show the 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. In other words, if a complete record is not before an appeal court, the court is in no position to assess its merits. Where, of course, the new issue raised is one of pure law, this burden necessarily eases, as the existence of a complete factual record is not as necessary: R. v. Brown [1993] 2 S.C.R. 918.

The reluctance to admit new issues is based largely on a concern for fairness to the parties. As a 2008 decision of the Ontario Court of Appeal, 767269 Ontario Ltd. v. Ontario Energy Savings L.P. 2008 ONCA 350 makes clear," ... 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."

That being said, the decision to consider a new question is entirely within the appellate court's discretion. Although the threshold is onerous, there is no doubt that if it is in the interests of justice that the new issue be considered, it will be. This is particularly so where a party may not have had effective counsel at first instance or where there is a good explanation for the omission in the lower court.

Two appeal decisions show the factors that go into the Ontario Court of Appeal's analysis.

Why new questions may not be allowed on appeal

Kaiman v. Graham involved a dispute over a family cottage. The appellants argued that, since the death of one of the cottage's owners, they were shut out of the use and enjoyment of the cottage.

The appellants brought an action in the Ontario Superior Court alleging, among other things, that they had an equitable interest in the cottage property and a valid unsigned lease over the property.

After losing at trial, the appellants...