APPEALS — points not taken below — conduct of trial — whether appellants should be permitted to agitate new issues on appeal — where evidence was available at the time of the trial — where possibility that new issues could have been met by evidence below — course adopted by the appellants on appeal impermissible
CONTRACTS — breach of contract — breach of implied terms — where option in favour of the appellants under the contract was subject to a Sunset Date — whether respondent’s breach of contract was causative of delay that prevented appellants from exercising call option — where appellants’ case on causation differed materially from case run below
Quick Take
1A party that fails to articulate a counterfactual on causation at trial, and expressly eschews reliance on particular breaches as causes of delay, cannot on appeal engage in a granular critique of the trial judge's counterfactual by reference to those same breaches and new factual contentions not put to witnesses below.
2The burden of demonstrating that a new issue may be agitated for the first time on appeal is heavy; the existence of even a possibility that the point could have been met by evidence at trial is fatal to the attempt, and a bare assertion that the appellate case is 'consistent' with what was advanced below is insufficient to discharge that burden.
3Where a trial judge undertakes a counterfactual analysis without meaningful assistance from the parties, the losing party cannot retrospectively impose on the trial judge the burden of trawling the documentary record to support a case that was not run.
