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Federal Court - Appeals - Factum. Lin v. Uber Canada Inc.
In Lin v. Uber Canada Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed a class proceeding appeal, here brought against a successful motion for stay of the civil action in favour of a contractual arbitration clause.
Here the court considered the effect of the absence of a legal issue in the appeal factum (a 'fresh law' issue):[35] While Mr. Lin raised this issue before the Federal Court and in his Notice of Appeal in this Court, he made no mention of it in the memorandum of fact and law that he submitted in support of his appeal. From this, Uber quite reasonably understood that Mr. Lin had abandoned the argument, noting at paragraph 23 of its memorandum that the Federal Court had dismissed Mr. Lin’s section 25 argument and that he was not pursuing the issue on appeal. Mr. Lin did nothing in advance of the hearing to disabuse Uber of this understanding.
[36] One of the principal functions of a memorandum of fact and law is to alert the opposing party to the arguments of the party submitting the memorandum, so as to afford the responding party a fair opportunity to address those arguments.
[37] Consequently, the jurisprudence has clearly established that only arguments contained in a party’s memorandum of fact and law should be advanced in oral argument: Kilback v. Canada, 2023 FCA 96 at para. 41; Bridgen v. Canada (Correctional Service), 2014 FCA 237 at para. 35; Sandhu v. Canada (Citizenship and Immigration), 2000 CanLII 15526 (FCA), [2000] F.C.J. No 902 at para. 4; Sibomana v. Canada, 2020 FCA 57 at para. 6. Accordingly, it would be both unfair to Uber and inappropriate for us to consider Mr. Lin’s section 25 argument, which, for the reasons given by the Federal Court at paragraphs 89-103 of its decision, has no merit in any event.
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