In general, arguments not raised at first instance ought not to be considered on review

[22]                          The ATA sought judicial review of the adjudicator’s decision. Without raising the point before the Commissioner or the adjudicator or even in the originating notice for judicial review, the ATA raised the timelines issue for the first time in argument. The ATA was indeed entitled to seek judicial review. However, it did not have a right to require the court to consider this issue.  Just as a court has discretion to refuse to undertake judicial review where, for example, there is an adequate alternative remedy, it also has a discretion not to consider an issue raised for the first time on judicial review where it would be inappropriate to do so: see, for example, Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, per Lamer C.J., at para. 30: “[T]he relief which a court may grant by way of judicial review is, in essence, discretionary.  This [long-standing general] principle flows from the fact that the prerogative writs are extraordinary [and discretionary] remedies” (para. 30).

[23]                          Generally, this discretion will not be exercised in favour of an applicant on judicial review where the issue could have been but was not raised before the tribunal (Toussaint v. Canada Labour Relations Board (1993), 160 N.R. 396 (F.C.A.), at para. 5, citing Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233 (C.A.), at p. 247; Shubenacadie Indian Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198 (T.D.), at paras. 40-43; Legal Oil & Gas Ltd. v. Surface Rights Board, 2001 ABCA 160, 303 A.R. 8, at para. 12; United Nurses of Alberta, Local 160 v. Chinook Regional Health Authority, 2002 ABCA 246, 317 A.R. 385, at para. 4).

 

 

Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, released today, is a helpful source for the principle that, in general, arguments not raised at first instance ought not to be considered on review:

 [25]                          This is particularly true where the issue raised for the first time on judicial review relates to the tribunal’s specialized functions or expertise.  When it does, the Court should be especially careful not to overlook the loss of the benefit of the tribunal’s views inherent in allowing the issue to be raised.  (See Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 89, per Abella J.)

[26]                          Moreover, raising an issue for the first time on judicial review may unfairly prejudice the opposing party and may deny the court the adequate evidentiary record required to consider the issue(Waters v. British Columbia (Director of Employment Standards), 2004 BCSC 1570, 40 C.L.R. (3d) 84, at paras. 31 and 37, citing Alberta v. Nilsson, 2002 ABCA 283, 320 A.R. 88, at para. 172, and J. Sopinka and M. A. Gelowitz, The Conduct of an Appeal (2nd ed. 2000), at pp. 63-67; A.C. Concrete Forming Ltd. v. Residential Low Rise Forming Contractors Assn. of Metropolitan Toronto and Vicinity, 2009 ONCA 292, 306 D.L.R. (4th) 251, at para. 10 (per Gillese J.A.)).