Barrister and Solicitor
Legal Writing and Research
Appeals - New Legal Arguments on Appeal
Van Galder v. Economical Mutual Insurance Company (Ont CA, 2016)
In this case the Court of Appeal succinctly set out the conditions required before a new legal argument (one not advanced at trial) will be considered by an appeal court:
 It is well established that this court should only receive an argument for the first time on appeal if persuaded that all of the facts necessary to address the point are before the court as fully as if the issue had been raised at first instance, and that the party against whom the issue is raised will not be prejudiced by it: Shtaif v. Toronto International Publishing Co. Ltd., 2013 ONCA 405 (CanLII), 306 O.A.C. 155, at para. 46. See also released 28 November 2016: IceGen Inc. (Re) at para 29.