Can a party at the hearing of an appeal against a finding that they have been found guilty of sexual assault on the basis of false imprisonment?

In Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, Weiler J.A. explained the rationale for the rule at para. 18. She wrote: “it is unfair to spring a new argument upon a party at the hearing of an appeal in circumstances in which evidence might have been led at trial if it had been known that the matter would be an issue on appeal”.

In considering whether to allow a party to argue a new issue on appeal, the court must be persuaded that: 1. The court has before it all facts necessary to address the point, as fully as if it were raised at trial; 2. Or that the new issue is one of pure law; 3. In exercising the court’s discretion, it would be in the interests of justice as it applies to all parties to allow the new argument to be made on appeal. (Kaiman v. Graham, at para. 18) Application of the Principles Cited Above to the Facts of this Case It is Appropriate to Consider the Estoppel Issues Raised by Joelle on Appeal