What Every Lawyer Should Know About Raising New Issues On Appeal

• Published date: 07 May 2021
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Landlord & Tenant - Leases
• Law Firm: Torkin Manes LLP
• Author: Mr Marco P. Falco

After a lengthy Court proceeding, lawyers may be tempted to devise new arguments on appeal in the hope of having an unfavourable decision overturned. However, the legal test for advancing novel arguments at an appellate Court remains onerous.

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' reluctance to allow new issues on appeal stems from a concern for fairness to the parties and the proper role of appellate scrutiny by judges.

The High Threshold in Seeking to Raise Novel Questions

A party seeking to raise new issues on appeal has a high onus. In order for the new issues to be considered, the appellate 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": Ross v. Ross (1999) 181 N.S.R. (3d) 22 (C.A.).

In other words, if a complete record is not before the appeal Court, the Court is in no position to assess its merits. Where, of course, the novel issue raised is one of pure law, this burden necessarily eases, as the existence of a complete factual record is not as important: R. v. Brown, [1993] 2 S.C.R. 918.

One of principles guiding the reticence to admit new issues is a concern for fairness to the parties. As a 2008 decision of the Ontario Court of Appeal, Ontario Energy Savings LP v. 767269 Ontario Ltd., 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 appeal Court's discretion. Although the threshold is high, 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 decisions of the Court of Appeal show the factors that go into the Ontario Court of Appeal's assessment of novel issues.

Five Good Reasons New Questions May not be Allowed on Appeal

Kaiman v. Graham, 2009 ONCA 77, involved a dispute over a family cottage. The appellants alleged 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, amongst other things...