“The appellant did not argue that the OBCA was a juristic reason in the court below. Principles of fairness usually militate against hearing new issues on appeal. The responding party may be at a disadvantage, having not led evidence on the issue in the court below. A related concern is that the record may not be sufficiently robust to permit appellate adjudication. Finally, new arguments on appeal do violence to the principle of finality. The appellate court is not a forum for revisiting tactical decisions that were unsuccessful at trial.
However, like most rules, the rule against new arguments on appeal has exceptions. Exceptions arise where the concerns that animate the rule can be adequately addressed. This is one such case. There is no missing evidence. The appellant has advanced a new theory, but it hinges on the evidence that was adduced in the court below. When asked, the respondent could not identify any additional evidence that she would have led on the issue. Therefore, the respondent is not at any discernable disadvantage, and this court has what it needs to adjudicate the issue on the merits.”