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Federal Court - Fresh Law. Bank of America v. Canada (Attorney General)
In Bank of America v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here from a JR of a dismissal of an late-filed application [under Excise Act s.141.02] to become a "qualifying institution", which would allow the applicant to "claim input tax credits above a prescribed rate"
Here the court considers the doctrine of fresh law in the federal court system:[6] Given that the Bank did not raise its reconsideration argument before the Federal Court, the standard of review issue does not arise, as there is no decision on this question for this Court to review on appeal.
[7] An appellate court will ordinarily not consider an issue that was not raised in the court of first instance, as the factual record relating to the issue may be incomplete, and it may be unfair to the respondent to do so: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paras. 21-26; Oleynik v. Canada (Attorney General), 2020 FCA 5 at paras. 70-72, leave to appeal to SCC refused, 76225 (15 October 2020). . Terra Reproductions Inc. v. Canada (Attorney General)
In Terra Reproductions Inc. v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and denied) a fresh law request, here in a JR:[6] The applicant also seeks to raise in this Court a new issue: whether an extension of time should have been granted under s. 6(3)(b) of the Regulations. The applicant did not raise this before the Tribunal. New issues affecting the merits are not normally admissible in judicial reviews in reviewing courts: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. As recently explained in Klos v. Canada (Attorney General), 2023 FCA 205, Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 does not cast doubt on the authority of Alberta Teachers.
[7] These rules are no mere technicality. Rather, they are quite fundamental. Under this legislative regime — part of the laws of Canada that bind all, including reviewing courts such as this Court — it is for the Tribunal to receive evidence, hear all issues, and decide whether an objection or complaint is timely. In circumstances such as these, reviewing courts are restricted to reviewing the Tribunal’s decision. Absent exceptional circumstances recognized in the authorities, reviewing courts cannot receive new evidence, entertain new issues or re-do the decision.
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[9] In oral argument, the applicant submits that the Tribunal should have applied s. 6(3)(b) and s. 6(4) on its own, to give the applicant the benefit of the thirty-day period. We disagree. In these circumstances, it is not the obligation of the Tribunal to look after the substantive interests of any party before it or develop or run a party’s case for it. As well, parties are advised in at least one guideline document, “Bid Challenge and Recourse Mechanisms”, of the deadlines. Here, the onus was on the applicant, who was well aware of the timing of its objection or complaint, to refer the Tribunal to s. 6(3)(b) and offer evidence and arguments in support of that request. . Canada (Attorney General) v. Benjamin Moore & Co.
In Canada (Attorney General) v. Benjamin Moore & Co. (Fed CA, 2023) the Federal Court of Appeal found itself in the middle of a patent doctrine mess, which they kicked back down to the Commissioner of Patents - essentially on grounds that the lower court had improperly considered 'fresh law' in establising a new legal test. The issue, and the involved test, was the determination of subject-matter patentability, specifically that of 'computer-implemented inventions'.
If anything, the case is a good object lesson in why 'fresh law' should not be considered lightly:[11] Moreover, what is being asked of this Court is essentially to give an opinion on how to construe existing Canadian case law dealing generally with subject matter patentability in order to reduce it to what purports to be a “simpler” approach for the determination of the patentability of computer-implemented inventions. Not only is this a very complex issue that has been the subject of much debate before the highest courts in the United States and Australia, but our Canadian case law dealing with computer-implemented inventions, particularly in the context of applying judicial or statutory exclusions is not fully developed, consisting of only a few decisions. This is especially relevant, considering that most participants before us either criticized or attempted to distinguish particular decisions that are indeed relevant to the exercise, while simultaneously arguing that this Court was not being asked to depart from previous case law on the basis of the test of Miller v. Canada (Attorney General), 2002 FCA 370 at paragraph 10, or to make new law.
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[13] As will be explained, the Federal Court erred for various reasons in including the test set out at paragraph 3 of its judgment. I further find that it would not only be premature, but quite unwise to attempt to settle issues that have yet to be properly considered by any court in Canada, and that the participants did not adequately address before this Court. I would thus allow the appeal, but only to delete paragraph 3 of the Federal Court’s judgment reproduced above. I would also add a direction that the Commissioner re-examine these applications on an expedited basis, in light of the most current version of the MOPOP with the benefit of these reasons. . Smith v. Canada (Attorney General)
In Smith v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal cites a test for fresh law in a federal administrative context:[52] The Appeal Division, in dismissing Mrs. Hume Smith’s motion, referred to paragraph 23 of the decision of the Supreme Court in Guindon v. Canada, 2015 SCC 41, in which the Supreme Court noted that the test for allowing a party to raise a new issue on an appeal is very strict:... The burden is on the appellant to persuade the Court that, in light of all of the circumstances, it should exercise its discretion to hear and decide the issue. There is no assumption of an absence of prejudice. The Court’s discretion to hear and decide new issues should only be exercised exceptionally and never unless the challenger shows that doing so causes no prejudice to the parties. . Canada v. Bezan Cattle Corporation
In Canada v. Bezan Cattle Corporation (Fed CA, 2023) the Federal Court of Appeal briefly cites the 'fresh law' doctrine:[156] As to the second point, Bezan Cattle asserts that it cannot be liable for amounts advanced to BFI because it received no consideration for assuming that liability. I see nothing on the record suggesting this argument was advanced before the Federal Court. Ordinarily a new issue may not be raised on appeal, although an appellate court may depart from this general rule where the interests of justice require it and where the Court has a sufficient evidentiary record and findings of fact to do so: Quan v. Cusson, 2009 SCC 62 at paras. 36-39. I am not satisfied this is a case where we should depart from the general rule. . Kurgan v. Canada (Attorney General)
In Kurgan v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal denied an attempt to raise 'fresh law' in a judicial review:[11] This argument was not raised in his application to the Federal Court for judicial review. His application for judicial review was based only on his claim that the Parole Board acted by reason of fraud or perjured evidence. Different bases for judicial review cannot normally be raised in an appeal from a judicial review application and we see no circumstances permitting Mr. Kurgan to do so in this case (Quan v. Cusson, 2009 SCC 62, [2009] 3 S.C.R. 712).
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