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Appeal Court Dicta

Federal Court - Fresh Law

. 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.


[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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