What is the test for addressing a factual issue at trial in an appeal?
Canada (Federal), Canada
The following excerpt is from Genex Communications Inc. v. Canada, 2010 FCA 353 (CanLII):
Unless the parties have fully addressed a factual issue at trial in the evidence, and preferably in argument for the benefit of the trial judge, there is always the very real danger that the appellate record will not contain all of the relevant facts, or the trial judge’s view on some critical factual issue, or that an explanation that might have been offered in testimony by a party or one or more of its witnesses was never elicited. As Duff J. put it in Lamb v. Kincaid (1907), 1907 CanLII 38 (SCC), 38 S.C.R. 516, at p. 539: A court of appeal, I think, should not give effect to such a point taken for the first time in appeal, unless it be clear that, had the question been raised at the proper time, no further light could have been thrown upon it.
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