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Review - Fresh Law - Failure to Object
COMMENT
'Failure to object' (which I have also located in the Fairness topic) is essentially an aspect of the 'fresh law' doctrine. It holds that where a party either fails to raise - or fails to object to - a legal principle, that they cannot later raise it again in any form of review (ie. appeal, JR or otherwise). There are discretionary exceptions.
. Kentros v. Kentros
In Kentros v. Kentros (Ont CA, 2026) the Ontario Court of Appeal dismissed an estates appeal, here brought against an order that rectified a will for lack of a 'remainderman clause'.
The court considers what amounts to the review 'fresh law' doctrine (here in the form of 'failure to object'), this in an estates context:[100] Even if the application judge erred by relying on this extrinsic evidence, however, I would not allow Dino’s appeal on this ground. As Justice Laskin observed in Marshall v. Watson Wyatt & Co. (2002), 2002 CanLII 13354 (ON CA), 57 O.R. (3d) 813 (C.A.), at para. 15: “[A] party in a civil case generally should not bring an appeal on the basis of some aspect of the trial proceeding to which it did not object. For example, if no objection is made to the admissibility of evidence in a civil trial, an objection on appeal will usually be unsuccessful” (citation omitted).
[101] This rule has been consistently affirmed: see, for example, Leader Media Productions Ltd. v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership, 2008 ONCA 463, 90 O.R. (3d) 561, leave to appeal to refused, [2008] S.C.C.A. No. 394; Harris v. Leikin Group Inc., 2014 ONCA 479, 120 O.R. (3d) 508, at para. 53; and Hoang v. Vicentini, 2016 ONCA 723, 352 O.A.C. 358, at para. 45. This court will relieve against the failure to object only where the interests of justice require it: Ly Innovative Group Inc. v. Facilitate Settlement Corporation, 2025 ONCA 194, 511 D.L.R. (4th) 725, at para. 38. . 1814219 Ontario Inc. v. 2225955 Ontario Ltd.
In 1814219 Ontario Inc. v. 2225955 Ontario Ltd. (Div Court, 2024) the Divisional Court held that a failure to object at trial being raised now as an appeal issue amounted to a 'fresh law' issue:[51] Second, there was no objection to the admissibility of the Documents at the trial. Trial counsel did not object to the admissibility of the Documents, other than Exhibit 6, as they were being admitted through witnesses who had received and processed and paid the amounts demanded in them. The one- page record constituting Exhibit 6 was not expressly entered for the truth of its contents. Even if this failure to object to the Documents as they entered evidence through viva voce testimony was a trial tactic, trial counsel did not make any submission at the end of trial that UM had improperly introduced alleged hearsay evidence.
[52] The failure to object means the Appellants are seeking to introduce a new issue on appeal. Appellate courts will generally refuse to entertain new issues on appeal due to the unfairness caused by forcing a party to respond to a new matter when they might have adduced evidence at trial had they known the matter would be an issue on appeal: see Whitby (Town) v. G & G 878996 LM Ltd., 2020 ONCA 654, at para. 9. In addition, the appellate court is deprived of the reasons of the lower court, which is in the best position to make findings of fact and to exercise discretion in all the circumstance of the case.
[53] I reject the Appellants’ submission that in the absence of an objection, the trial judge had an obligation as gatekeeper to ensure inadmissible evidence was not admitted at the trial. Trial judges cannot be expected to be omniscient. The Documents were admitted through viva voce evidence, there was no objection, and the Appellants’ pleadings did not plead a claim or defence that would have rendered the specific contents of the Documents controversial.
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