Raising a new issue on appeal requires obtaining the leave of the appellate court.

If (1) the evidentiary record is sufficient to permit the appellate court to fully, effectively, and fairly determine the issue raised on appeal, and (2) the failure to raise the issue at trial was not due to tactical reasons, then leave should be granted where (3) refusing leave may result in a miscarriage of justice.

On the other hand, if refusing leave would not cause a miscarriage of justice, leave to raise a new issue on appeal should ordinarily be denied.

  1. v. Greer,2020 ONCA 795, at para. 91.

This recent statement by Ontario’s Court of Appeal changes the customary articulation of the test for granting leave to raise a new issue on appeal. [FN]

Additionally, where the new issue arises from a change in the law while the case is still “in the system”, leave may be granted to present an evidentiary record on appeal.

  1. v. Greer,2020 ONCA 795, at para. 92.

Stuart O’Connell (Barrister/Solicitor)

FN: formerly, the third branch of the rule required that “(3) the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal.”  See R. v. Reid, 2016 ONCA 524, at para. 43.