In Salih v. Lacroix (Div Court, 2023) the Divisional Court considered RCP 61.08(2) which provides that only issues raised in the notice of appeal may be argued, barring permission of the court:
[4] Last week, the Landlord notified the Tenants that he was seeking to put forward a new argument. The Tenants objected, relying on the provisions of Rule 61.08(2) of the Rules of Civil Procedure, which state that “no grounds other than those stated in the notice of appeal ... may be relied on at the hearing, except with leave of the court hearing the appeal”. They also argued that we should not grant leave in this instance, as the Board was entitled to appear on this appeal and chose not to do so after having reviewed the material file by the Landlord. The Board might have made a different decision if it had been given notice of the new ground raised.
[5] We agree with the Tenants that leave to argue the new ground should not be granted. First, the Board never had the opportunity to consider or address this ground at first instance. Second, it has also been denied the opportunity to address the ground on appeal. It is no answer to say that the way to remedy this problem is to adjourn the appeal.
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