Simon's Megalomaniacal Legal Resources

Appeal-Judicial Review - Fresh Law - Administrative

. Frayce v. BMO Investorline Inc.

In Frayce v. BMO Investorline Inc. (Div Court, 2023) the Divisional Court located what was essentially a 'fresh law' request within 'fairness' - even though it was not in an administrative context:

[48] In Ontario Service Employees Union Pension Trust Fund v. Clark, 270 DLR (4th) 429, 2006 CanLII 20839 (ONCA), the Court of Appeal had this to say about a party’s attempt to resile from a strategy adopted by them before the court below:

[24] Deloitte took an “all or nothing” approach before the application judge, contending that it would not be feasible to narrow the request by attempting to separate the relevant from the irrelevant in the circumstances – thereby tactically strengthening its argument based on “burdensomeness.” On appeal, Deloitte attempted to resile from that position and argued that, if the court were to uphold the enforcement order, it should order one of a series of suggested options narrowing the production permitted under the letters rogatory. While it was open to the application judge to narrow the request, she was not invited to do so, on the basis that it was impracticable. In my view, fairness considerations preclude Deloitte from reversing that position now on appeal.

[49] In our view, fairness considerations also preclude us from allowing the Plaintiffs to change their position on the concession on appeal. Having made a strategic decision that did not work at the court below, it is not appropriate for the Plaintiffs to reverse that decision and try again before an appellate court.

. Le-Vel Brands, LLC v. Canada (Attorney General)

In Le-Vel Brands, LLC v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an appeal from a JR that upheld a Health Canada decision that a skin 'patch' product was properly categorized as a 'natural health product' (NHP) under the Food and Drug Act (FDA).

In this quote the court considers the 'fresh law' doctrine, here in an administrative context:

[67] It is well established that a reviewing court will not exercise its discretion to hear a new issue when it was not raised before the administrative decision-maker. As the Supreme Court noted in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paras. 22 to 26, there are a number of justifications for this rule. One is that a reviewing court should respect the policy choice made by Parliament to entrust the determination of some issues to administrative bodies, and to give them the opportunity to deal with those issues first. Another is that it would deprive the reviewing court of an adequate evidentiary record, and of the administrative body’s specialized expertise. This general rule has been even more strictly enforced on appeal from the judgment of a reviewing court: Shoan v. Canada (Attorney General), 2020 FCA 174 at para. 13.

. Khan v Allstate Insurance Company

In Khan v Allstate Insurance Company (Div Court, 2023) the Divisional Court considered an appeal from a LAT SABS auto insurance ruling "that the Appellant was not catastrophically impaired due to mental behavioural impairments". In these quotes the court considered a 'fairness' issue, that being the advancement of fresh law at the tribunal appeal stage rather than first at the purely administrative decision notice stage:

[22] According to the Appellant, raising a new issue for the first time at the hearing of the appeal ran contrary to the LAT rules and to the provisions of the SABS that require an insurer to be specific about its reasons for denying an insured’s CAT claim. The purpose of both is to ensure that the insured can make an informed decision about whether to appeal that denial and to ensure that the insured can adequately prepare and present its case at the appeal of that denial. Both the SABS (which is consumer protection legislation) and the common law rules of procedural fairness require that a person be given proper notice of the case they have to meet.

[23] The problem with this submission is that no objection was made when the insurer’s counsel made his opening statement; no objection was made before the Appellant began to present his evidence; and no objection or concern was raised at any other point during the hearing, including during the six-month period from August 2021 to February 2022 when the hearing was adjourned. The Appellant (who was represented by counsel at the hearing) acknowledges that the procedural fairness issue was never raised by him during the hearing and is being raised by him for the first time on appeal.

[24] As stated by the Court of Appeal for Ontario in Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, 119 O.R. (3d) 81 at para. 75:

It is trite law that appellate courts are not to entertain any new issues except in very limited circumstances.

[25] Where the issue is one that relates to procedural fairness, it is particularly important that the issue be raised before the tribunal hearing the matter at first instance. That tribunal is in a position to listen to the submissions, and, if they have merit, grant a remedy that would allow the defect to be cured. The detrimental impact to the administration of justice if a procedural fairness issue is not raised before the tribunal who can do something to correct the unfairness is obvious—the injured party pursues an appeal before a different tribunal, which then may result in the holding of a second hearing. This in turn drastically increases the costs to the parties, results in delay, and demands the use of already scarce judicial and quasi-judicial resources.

[26] The Appellant’s reasons for not raising the issue before the LAT are twofold. First, it never occurred to the Appellant that the LAT would actually make a decision on the basis of an issue that had not been raised before the appeal and second, even if his concerns had been raised, the LAT would not have done anything to correct the problem.

[27] To accept either of these submissions as a reason for entertaining the Appellant’s argument on procedural fairness would be to say that the high threshold for hearing arguments that are raised for the first time on appeal can be met on the basis of speculation and assumptions. In spite of the insurer’s clearly articulated position during the appeal hearing, the Appellant assumed that the LAT would not give effect to the insurer’s arguments based on his unarticulated concern about procedural fairness. The Appellant also failed to raise his concern because of his speculation that the LAT would not give any weight to his concern. However, his failure to raise this concern before the LAT deprived this court of the evidence necessary to establish how the LAT would in fact have dealt with the concern.