identifying whether the arguments advanced by your

Transcription

1 Introduction paper sets out some basic principles personal injury lawyers need to consider This Much of it will be devoted to explaining just how limited appellate review is. Knowledge identifying whether the arguments advanced by your provinces and territories are not so gentle: see Housen Nikolaisen and H.L.. Canada. 2 Most of the time appellate judges are very mindful of the limits of appellate review and do not expect counsel to dwell on them at length. However, they do expect Statutory Basis of Appellate Review The courts are creatures of statute. 3 Although they review the decisions of Appellate superior courts, they do not possess the inherent jurisdiction enjoyed by a Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33. Housen H.L. Canada (Attorney General), [2005] S.C.R. 401, 2005 SCC Kourtessis M.N.R., [1993] 2 S.C.R. 53, LaForest J. at 69-70; Defending Your Damage Award on Appeal Kirk F. Stevens, Lerners LLP when they find themselves trying to uphold damage awards in an appellate court. Because the grounds upon which an appellate court may interfere with an assessment of damages are limited, this subject is narrow. Hence, this paper will be relatively brief. of those limits should assist you in opponent are permissible. Also, from time to time, appellate judges need gentle reminders of the fetters restraining their impulse to reach the "right" result as they might see it, if they had been the trial judge or on the jury. Sometimes, the reminders of these constraints delivered by the Supreme Court of Canada to the appellate courts of the counsel to shape their arguments with those constraints in mind. superior court

2 134.(1)Unless otherwise provided, a court to which an appeal is taken may, any order or decision that ought to or could have been made by the make or tribunal appealed from; court (b) order a new trial; The above provision, which is broad, is circumscribed by s-s. 134 (4)(a): Unless otherwise provided, a court to which an appeal is taken may, in a (4) case, proper inferences of fact from the evidence, except that no inference shall be draw that is inconsistent with a finding that has not been set aside; drawn Section 134(4)(a) forces an appellate court-- and an appellant who seeks to persuade an appellate court to come to grips with the actual findings of a trial judge or jury, 4 R.S.O. 1990, c.c of record. Consequently, in Ontario, one must look initially to the Courts of Justice Act 4 to determine the ambit of the jurisdiction of both the Court of Appeal and the Divisional Court. This paper will not address the question of when an appeal lies to the Divisional Court, as opposed to the Court of Appeal; the answer to those jurisdictional questions can be readily found by reading ss. 6 and 19 of the Courts of Justice Act. The section of the statute which is most germane to this subject is s. 134, which defines the powers of both Court of Appeal and the Divisional Court when an appeal is properly before them. That section has several parts warranting discussion: (a) (c) make any other order or decision that is considered just. (a)..,to enable the court to determine the appeal,... instead of emphasizing other facts in the record to come to a different conclusion. In

3 issue of when an appellate court may set aside a For the purposes of this subject, s-ss.134(6) and (7) of the Courts of Justice Act are also significant: If a substantial wrong or miscarriage of justice affects only part of the judgment or only trial process. Not every error made in the conduct of a trial, such as misdirection or non- See: H.L. Canada, 5 which considers The Court of AppealAct, 2000, S.S. 2000, c. C-42.1, s. 14. supra, that case, the defendant argued successfully in the Saskatchewan Court of Appeal and unsuccessfully In the Supreme Court of Canada that the Saskatchewan statute afforded scope for a hearing de novo and in broader powers on the Saskatchewan Court of Appeal than are conferred on other provincial conferred of appeal, including Ontario; Hodgkinson Sims, [1994] 3 S.C.R. 377, in which LaForest J. stated courts p.426, that an appellate court "simply has no jurisdiction to interfere with the findings and conclusions at of fact of a trial judge..."; and, Waxman Waxman (2004), 186 O.A.C. 201 (C.A.) at other words, the provision suggests that appeals are to be reviews for error, not hearings de novo. 5 As discussed below, considerable jurisprudence addresses the finding of fact made from an inference. 134(6) A court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred. some of the parties, the appellate court may order a new trial in respect of only affected parties: a 134(7). While s-ss. 134 (1) and (4) speak to what an appellate court may do with the conclusions of a judge or jury, ss-s.134 (6) and (7) speak to appellate scrutiny of the direction in the charge to the jury, the admission of inadmissible evidence, the exclusion of admissible evidence, or the striking or retention of a jury notice, necessarily justifies a new trial. To obtain a new trial, appellants must show more than the existence of error. Rather, they must also demonstrate a reasonably substantial possibility that the result would have been different if the error had not occurred.

4 In rare circumstances, an appellate court may also exercise its power under s. 134(1)(c) speaking, as in this appeal, where there has been Generally that satisfies the court that had the jury been misdirection that only one verdict could be given by a properly such jury, acting reasonably and judicially, the court is instructed bound to order a new trial, but has the power, which it not to exercise, to direct that judgment be entered ought On an appeal from an award of damages for personal 119. the court may, if it considers it just, substitute its own injury, assessment of the damages. Previously, if an appellate court set aside a jury's assessment of damages, the case substitution by the appellate court. Now, the court will generally make its own assessment if it considers that the record allows it to do so. 60neil Marks(2001), 141 O.A.C. 201 (C.A.)at to decide a case even though a new trial would normally be ordered in similar circumstances. In Oneil Marks, Borins J. A. stated: directed it would not necessarily have reached the properly verdict, a new trial is ordered. However, there is same authority for the proposition that when an appellate ample is satisfied that all the facts are before it, and they are court notwithstanding the verdict of the jury. 6 Section 134 of the Courts of Justice Act is not the only provision in that statute that speaks to the powers of an appellate court. Section 119, which was enacted in Bill 69 in 1989, provides that: had to be sent back for re-assessment by another jury, unless the parties consented to

5 Jurisprudential Constraints on Appellate Review of a The scope of appellate intervention varies with the type of asserted error. a phrase first used by the Supreme Court of Canada in Since the term is Housen 7 Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at 8-9. Stein 8 The Ship "Kathy K", [1976] 2 S.C.R. 802, Ritchie J., at 808. A CanLII search on April 30, Waxman Waxman (2004), 186 O.A.C. 201 (C.A.)at Trial Court's Conclusions Errors of Law If the appellant contends that the trial judge erred in law, the standard of review is "correctness." This standard is justified because the core function of appellate courts is to maintain legal consistency and ensure that the law develops in conformity with the demands of sound policy. 7 Review for Factual Error By contrast, the standard of review for factual findings is "palpable and overriding error," disjunctive, it is necessary to discuss the meaning of "palpable" separately from the meaning of "overriding." 9 A finding of fact can only be set aside if it is "palpably" wrong. This means that the appellate court must be able to "plainly identify" the flaw in the finding to show that it is "clearly" wrong and "unreasonable". To employ a metaphor, one must be able to "put a list of 102 Supreme Court of Canada cases containing the phrase, "palpable and overriding yielded error."

6 one's finger" on the error and be able to explain why it is error. In Waxman Waxman, the leading Ontario decision in the past decade on the standard of appellate review, Canada, Fish J. stressed that an appellate court may not re-weigh evidence to arrive at a finding of fact that it believes is more reasonable than a fact reasonably found by a whose existence is attested to directly by a witness or an exhibit. Fact-finding, however, almost always involves drawing inferences from evidence and other factual findings. defendant's sexual abuse of the plaintiff, he probably would not have developed alcoholism (which was a finding at issue in H.L.). Waxman lo Waxman, supra, at 305. H.L. 11 Canada (Attorney General), supra, at Doherty J.A. explains: "After Housen, appellate courts will not review findings of fact... by asking whether on the totality of the record, those findings are reasonable. ''1 In H.L. trial judge. 11 The "palpability" standard applies to both findings of "primary fact" and findings of fact that are arrived at through inference. A finding of primary fact (or "evidential fact") is one Inferences require the application of both reasoning and common experience. A classic example of a factual inference is a finding of causation- e.g., "but-for" the There are two broad reasons for rejecting any distinction between primary fact and inferences for the purposes of appellate review. Housen Nikolaisen, H. L. Canada and Waxman Waxman go to great lengths to repudiate the argument that, where credibility is not in issue, an appellate court is in as good a position to draw inferences as the trier of fact.

7 The first reason for rejecting the distinction is that appellate courts are simply not in as good a position as trial courts to draw inferences. Trial judges and juries are more familiar with all of the evidence than an appellate court can possibly be, because an evidence. Also, the basis of a valid inference may not be fully articulated in the reasons for judgment, and is invariably only sketched in the barest manner in the answers of a jury. In this respect, it should be noted that a trial judge is not required to address every piece of evidence adduced at trial. In most cases, this would be impossible. While many basis for deference. A finding of credibility can be set aside if it is palpably wrong e.g., where they are based on arbitrary or irrelevant considerations. 12 Nevertheless, a finding assessments are also grounded in numerous, Credibility unstated considerations which only the trial judge can often The considerations that go into an inference as to whether a or include sensory "data" picked up by the trier of fact from the demeanor of witnesses. Waxman 12 Waxman, supra, at 364. Waxman 13 Waxman, supra, at appeal necessarily focuses on a limited number of issues and a limited amount of statements in the cases justifying a highly deferential standard of review focus on the advantage trial courts enjoy in assessing credibility, this advantage, while real, is not the where the trial court overlooks self-contradictory testimony or other incontrovertible evidence that renders a witness' evidence manifestly wrong (or right) despite the impression the witness made in the box. Findings of credibility may also be set aside of credibility is especially difficult to reverse because, in essence, it is a special type of inference. As Doherty J.A. stated in Waxman Waxman: appreciate and calibrate. 13 witness should be believed However, the credibility of any witness also depends on the internal consistency and

8 an appellate an obligation on appellants to narrow the focus to specific facts, demonstrate that they see Toneguzzo-Norvell (Guardian ad litem of) Burnaby Hospital 15. This high degree of deference does not mean that a trial judge's decision to prefer the opinion of one where the opinion lacks reasonable foundation in the evidence, or is inconsistent with a As already noted, to vitiate a judgment, an error must be "overriding" as well as Housen 14 Nikolaisen, supra, at Toneguzzo-Norvell (Guardian ad litem of) 15 Bumaby Hospital, [1994] 1 S.C.R reasonableness of the witness' evidence, its relationship to other evidence and its congruency with the perceptions of the tries of fact as to how the world works. Credibility findings are probably the most complex inferences of all. Second, there are policy reasons for limiting appellate review of factual findings and for rejecting any distinction between findings of primary fact and inferences. If court is required to review the totality of the record to determine whether the factual inferences made by a trial judge are reasonable (the position of Bastarache J. in Housen in dissent), appeals would be interminable. Efficiency requires the imposition of are palpably wrong, and establish their central importance -i.e., to show "palpable and overriding error", as the majority in Housen held. Limiting appellate review is also justified by the need to protect the legitimacy of trial courts through a "presumption of fitness" and the need to discourage the number of appeals. 14 The "palpable error" test also extends to the acceptance or rejection of expert evidence: expert to that of another is immune from challenge. Accepting the opinion of an expert finding of primary fact, would be unreasonable. "palpable". In other words, the tainted finding must be central to the trial result, in the

9 sense that, if it cannot stand, the judgment must fall with it. 16 If an error is overriding, fact may hinge on credibility, which, in many cases, can only be assessed by actually nevertheless might be reasonably possible for another trial judge to reach the same An exhaustive definition of the kind of errors that qualify as palpable and overriding misapprehension of relevant evidence; the consideration of irrelevant evidence; the finding that had no basis in the evidence; and a finding based on an inference that is outside of even the generous ambit a Whether a finding is "speculation" is often a matter of controversy. An inference can legitimately be based on a sense and/or common experience. Waxman combination of evidence and the trier of fact's common However, the boundary between common sense -9- setting it aside may or may not result in the appellate court reaching a conclusion opposite to the factual conclusion reached at trial. This is because the appellate court may not be able to reach its own finding on the evidence. The proper determination of a seeing the witnesses. 1 In other cases, a new trial might be required because the determination turns on the totality of the evidence -i.e., even though the appellate court can "put its finger on" an error in the process by which the factual finding was made, it conclusion on the same evidence. 18 errors is not possible, but, with respect, list set out by Doherty J. A. in Peart Peel Regional Police Services Board is a very useful starting point: the failure to consider relevant evidence; within which there may be reasonable disagreement as to the inference to be drawn; that is, an inference that is speculation rather than legitimate inference. 19 Waxman see, e.g., Oneil Marks, supra. But Centenary Heath Centre (2005), 198 O.A.C. 349 (C.A.) at 86. Armstrong Peart Peel Regional Police Services Board (2006), 217 O.A.C. 269 (C.A.) at 158

10 "Ignoring evidence" requires a special caution The mere omission of mention of a reasons for judgment does not necessarily imply that the trial judge in the reasons will not necessarily mean that omissions appellate court has jurisdiction to review the evidence the at trial... [A]n omission is only a material error if it heard rise to the reasoned belief that the trial judge must gives forgotten, ignored or misconceived the evidence in a have that affected his conclusion. Without this reasoned way reasons for judgment may simply mean that the trial judge, correctly, did not think it was sufficiently weighty to mention. On the other hand, some assess the reasonableness of 2o Compare the majority and dissent in Aristorenas Comcare Health Services (2006), 83 O.R. (3d) 282 Waxman 22 Housen Nikolaisen, supra, at 1139; Van de Perre Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60 at 5. 1 R. 23 Sheppard, [2002] 1 S.C.R. 869, Waxman Waxman, supra and speculation can be blurry. 20 Speculation can also occur when a trier of fact, after rejecting a witness' version of events, leaps to the conclusion that the opposite of what the witness testified to must be correct, without any positive evidence to support the inference. 21 piece of evidence in failed to take it into account: belief, the appellate court cannot reconsider the evidence 22 Silence on some evidence in evidence is so critical that failure to explain its rejection does amount to palpable and overriding error. This is because reasons for judgment must achieve a level of completeness and coherence to afford the losing party an intelligible reason for why s/he lost and provide an appellate court an opportunity to the conclusions. 23 For example, the failure to mention evidence on a central issue from IF.A.). Waxman, supra, at I]351.

11 a witness whose credibility was unchallenged has been held to constitute palpable and overriding error. A finding of mixed law and fact is simply the application of a legal standard to a fact or damages is similar to a finding of mixed law and fact because it is essentially a review for findings of mixed law and fact requires the appellant to identify a misapprehension of the legal standard. In that event, the error is more properly more detail below, that, to be reversible, the error must have resulted in a substantial Mandrake Management Consultants 24 Toronto Transit Commission (1993),102 D.L.R. (4th) 12 (Ont. at 37-40; Cyanamid of Canada Ltd. Bigelow Liptak of Canada Ltd. (1992), 99 D.L.R. (4th) 118 (Ont. C.A.) at 123. C.A.) Housen 25 Nikolaisen, supra, at Review of Findings of Mixed Law and Fact The "palpable and overriding error" test also applies to findings of "mixed law and fact." set of facts. The classic example of a finding of mixed law and fact is a determination of whether a defendant is negligent. As discussed below, the determination of an award of "judgment call", reversible only if demonstrably unreasonable. Although the standard of unreasonableness, an appellant can also succeed by showing that the error was really characterized as an error of law, reviewable on the correctness standard. 25 Review of Jury Verdicts and Assessments Is the standard of review any different for jury trials? In theory, the standard should be be the same. In a jury trial, the law applied by the court is set out in the charge to the jury and is reviewable on the correctness standard, subject to the proviso, discussed in

12 a standard of "palpable and overriding error" for findings of requiring made by either a trial judge or a jury reinforces the proper negligence established standard of review applicable to a finding of negligence by the jury. 26 [Emphasis added.] a awards of damages may only be set aside for palpable Jury overriding error. It is a long-held principle that "when on and proper direction the quantum is ascertained by a jury, the a between the figure at which they have arrived and disparity figure at which they could properly have arrived must, to any correction by a court of appeal, be even wider than justify the figure has been assessed by a judge sitting when 27 alone" Interference with a jury verdict, assessment of the quantum of damages, or Housen 26 Nikolaisen,supra, at 30. Young 27 Bella, [2006] 1 S.C.R. 108 at 30, quoting from Nance British Columbia Electric Railway -12- wrong or miscarriage of justice. As for findings of fact and findings of mixed law and fact made by a jury, Cory and lacobucci, JJ., writing for the majority in the Supreme Court of Canada in Housen Nikolaisen, said relationship between the appellate and trial court levels and accords with In Young Bella, a Supreme Court of Canada decision restoring a jury's assessment of damages, the court cited both Housen and H. L. Canada as determining the standard of review, even those two decisions reviewed judgments from bench trials. In practice, as opposed to theory, however, appellate courts give.even more deference to juries than to trial judges. In Young Bella, McLachlin C.J.C. and Binnie J. stated apportionment of damages according to fault is justified only in "exceptional" Co., [1951] A.C. 601 (P.C.), at p. 614.

13 principle has been laid down in many judgments of this Court to this The that the verdict of a jury will not be set aside as against the weight of effect, unless it is so plainly unreasonable and unjust as to satisfy the evidence that no jury reviewing the evidence as a whole and acting judicially Court The very nature of jury verdicts and assessments of damages throws up a significant hurdle into the path of an appellant. Jury answers are sparse; they identify the wrong Formulations of the standard of appellate review specifically pertaining to damages are Vieczorek Marcoccia 28 Gill, 2009 ONCA 13 at 29; Jones Niklaus (2008), 240 Oo.A..C. 43 (C.A.)at 43; Jack Kirkrude (2002), 155 O.A.C. (C.A.) at 3; Snushall Fulsang (2005), 78 O.R.(3d) 142 (C.A.) at 19; McCannell 29 McLean, [1937] S.C.R. 341, at p. 343 Cameron 3o Excelsior Life Insurance Co., [1981] 1 S.C.R. 138, Laskin C.J.C.142;.Koukounakis (1995), 23 O.R. (3d) 299 (C.A.), Doherty J.A. at 305-6; Stainrod Koukounakis 31 Stainrod, supra, at p. 305, quoting Nance British Columbia Electric Railway 3 D.L.R. 705,713 (J.C.P.C.-B.C.); Woelk Halvorson, [1980] 2 S.C.R. 430, 435-6; Graham Co.,[1951] (1990), 74 DoL.R. (4th) 1 (Ont. C.A.). Rourke -13- circumstances. 28 Likely, the most frequently quoted formulation of the test was set out by the Supreme Court of Canada in 1937 in McCannell McLean: could have reached it. 29 committed by the defendant in few words and assessments of damages are set out in bald amounts. The findings of fact supporting verdicts and assessments must be inferred from the answers and the evidence. Thus, in approaching a jury's assessment of damages, deference requires an appellate court to presume that the jury made every finding in the respondent's favour that was reasonably open to it on the evidence. 30 Application of the Standard of Review to Assessments of Damages essentially corollaries of the general principles discussed above. The most frequently quoted statement is that the appellant must establish that the award "is so inordinately high (or low) that it must be a wholly erroneous estimate of the damages." 31 In Piersma, Cory J.A. said that an award of non-pecuniary damages made by

14 Awards for past pecuniary loss (income and cost of care) require proof on a determine past events on the balance of probabilities and make quantification Non- Pecuniary General Damages Vieczorek 32 Piersma (1987), 58 O.R.(2d)583 (C.A.), Cory J.A., 589. Graham 33 Rourke (1990), 75 O.R. (2d) 622 (C.A.) a jury should only be set aside if it is "beyond the scope of anything that could be accepted as reasonable. ''32 Past Pecuniary Loss balance of probabilities. Review of such awards on the palpable and overriding error standard is no different than the review of other findings of fact. At first instance, the task is to judgments about them. On appellate review, the task is to determine whether the appellant can establish that the conclusion was unreasonable. Review of awards of non-pecuniary damages and awards for future pecuniary loss require further elaboration. An award of non-pecuniary general damages results from a two-step exercise. First, the trier of fact determines what injuries and impairments the plaintiff has suffered and the extent, if any, to which they are likely to persist into the future. Reviewing those conclusions on appeal is a matter of applying the palpable and overriding error test. 33 The second step is assigning an amount to the non-pecuniary loss. This step can be done by a trial judge or by a jury, with or without the guidance of the trial judge or

15 counsel for the parties. 34 If guidance is given in the charge to the jury, the trial judge's of Appeal often applies a rule of thumb enunciated in Howes Crosby: or too low by 50%, it concludes that the damages are high high or low and varies it accordingly inordinately establishing a Howes Crosby also holds that, while awards of non-pecuniary general damages should aim for consistency, they are not to be measured against the cap in the "trilogy." As the Court of Appeal recently stated in Sandhu Wellington Place Apartments upper limit for non-pecuniary damages in catastrophic The cases is not to be used as a scale against which non- injury to evaluate Harvinder's injuries solely on the inappropriate of some notional comparison with an imagined worst basis cases should achieve a degree of consistency and similar this kind of comparative analysis offers only uniformity, assistance. The assessment of non-pecuniary limited ultimately depends on the mix of factors peculiar to damages Courts of Justice Act, 34 s supra, Howes 3 Crosby (1984), 45 O.R. (2d) 449 (C.A.), MacKinnon A.C.J.O. at p. 459: 36 Sandhu Wellington Place Apartments 2008 ONCA 215, 291 D.L.R. (4th) 220, 234 O.A.C. 200 (C.A.) -15- instruction should be informed by reference to similar cases, bearing in mind that comparisons between cases are necessarily rough and can only result in range of reasonable values for the loss. When reviewing a jury assessment, the Court this Court, depending on the amount of damages, Normally the view that if it is of the opinion that the award is too takes claims for all other injuries are to be measured: pecuniary Howes Crosby [citation omitted] In other words, it is see case scenario. While awards for non-pecuniary damages in each particular plaintiff at 25.

16 and recovery is discounted by the percentage of possibility that the loss may not occur reviewing a damage assessment. It can interfere with that in only where the trial judge misapplied applicable assessment a wholly erroneous estimate of the damage suffered is omitted. 38 [Citations defendant was able to point to considerable evidence to show that there was a even if Graham 37 Rourke, supra; Andrews Grand & Toy AIberta Ltd. (1978), 83 D.L.R. (3d) 452 at pp [1978] 2 S.C.R. 229; Schrump Koot (1977), 18 O.R. (2d) 337 (C.A.), 8, 38 Graham Rourke, supra, at pp. -; -16- Future Pecuniary Loss At first instance, the standard of proof for this type of loss is "real and substantial risk" and/or by the chances that it might have occurred even if the tort had not been committed. 37 Doctrinally, the test for reviewing assessments of future loss on appeal is the same as for past loss. In the context of reviewing (and varying) such an assessment in Graham Rourke, Doherty J.A. stated: An appellate court must give due deference to the trial judge of law, or made a palpable and overriding error principles affected factual findings, or awarded an amount which which Practically, speaking, however, review of awards for future loss on factual grounds will be even more difficult because the exercise at first instance is inherently somewhat speculative. Nevertheless, as Graham Rourke demonstrates, the test can be met. There, the trial judge found that there was no evidence to support a contingency deduction from the awards for future loss of income and future care. On appeal, the substantial possibility that the plaintiff's pre-accident back condition would have recurred the motor vehicle accident at issue had not happened.

17 Are future pecuniary damage awards subject to review on the basis that, even though evidence exists to support them, the assessment is simply too high, unprecedented, and unfair to the defendant? This issue was raised recently in Marcoccia Gill, supra, an appeal of a jury assessment of damages for future care ($14 million) in a brain injury care and supervision. The Court of Appeal gave short shrift to the defendant's argument that the award was "way out of the park", noting that the appellant had conceded that an Apartments, also a had no the court rejected the proposition that the assessment of pecuniary damages mentioned by plaintiffs' counsel in her closing jury address. The Court of Appeal should never forget that the trade-off for the cap on Marcoccia 39 Gill, supra, at 31. Aberdeen 4o Zanatta, 2008 BCCA 420 (CanLII) at case. The award was premised on the proposition that the plaintiff, who was mobile but had severe cognitive, psychological, and emotional problems, would require constant assessment of $11 million would have been reasonable. The court held that it basis to interfere where the award rested on expert evidence properly adduced at trial. 39 Implicitly, is "subject to a tariff or comparison between plaintiffs", a proposition that was also recently rejected by the British Columbia Court of Appeal in Aberdeen Zanatta. 4o The "simply too high" issue also lurked beneath the surface in Sandhu Wellington Place brain injury case. There, the defendant's central complaint on appeal was that the jury assessed future care at an amount higher than the highest amount dismissed the appeal, noting that the assessment was grounded in the evidence. Despite the argument's lack of success thus far, we can expect that unsuccessful defendants will continue to advance it in one form or another. Respondents' counsel non-pecuniary general damages in

18 the trilogy was affirmation that pecuniary loss, particularly the cost of future cane, for Process Errors and Trial Unfairness Review paper of this nature cannot encompass in any detail the subject of appellate review This on the basis of trial unfairness. Nevertheless, lawyers for respondents should keep on a wrong principle or are arbitrary and/or capricious and/or based on a palpable decision might be wrong, but it may not have caused a substantial wrong or miscarriage of justice, for example, in Sandhu Wellington Place Apartments, the Court of Appeal held that, although the trial judge erred in refusing to qualify the defendant's only expert inconsistent with the evidence (including admissions by the defendant's employees) to a ground of appeal, as where the jury was erroneously instructed on a pivotal legal Andrews 41 Grand & Toy Alberta Ltd., supra, at pp Graham 42 Rourke, supra; Hamstra British Columbia Rugby Union, [1997] S.C.R. 1092; MacDonald v Chalmers Estate, 2008 ONCA 889 ate 5-7. Sandhu 43 Wellington Place Apartments,supra, at should be fully compensated., 1 several considerations top of mind. First, most evidentiary rulings and rulings as to trial process are discretionary and, as such, are entitled to deference unless they are based misapprehension of the factual circumstances. ' 2 Thus, even if the impugned decision can be criticized, it may still be afforded deference. Second, as noted above, such a on liability, his qualifications were so weak and his proposed evidence was so that, even if he had been heard, his evidence could not have affected the jury's verdict. 43 Third, appellants may complain about matters on appeal that were not objected to at trial because of strategic considerations. The classic example of this is failure to object to the charge to the jury, but there are others, such as the failure to object to the admission of evidence. While failure to object at trial is not necessarily fatal

19 principle or the conduct of successful trial counsel was egregious, silence at trial is a appellant's counsel is to show that, within that focus, the trial court made errors of law or effort to devote to defending a particular aspect of the reasons for judgment, or a ruling Brochu 44 Pond (2002), 62 O.R. (3d) 722 (C.A.), Cronk J.A. at 66; Mizzi Hopkins 2003), 64 O.R. 365 (C.A.) Cronk J.A. at 53-9; Abdallah V. Snopek, 2008 CanLII 6983 (ON S.C.D.C.).. (3d) -19- significant hurdle to an appellant that the respondent should emphasize, if relevant. 44 Conclusion: A Practical Note for Respondent's Counsel To have any hope of success, an appellant must narrow the focus of the case to one or a few findings of fact, or occurrences during the course of the trial. The job of unreasonable findings of fact that were pivotal to the entire case, or that the trial was tainted by substantial unfairness. Since no case is perfect (the most perfect cases tend to settle before trial), appellants will usually be able to find something to create an initial doubt in the minds of appellate judges about the soundness of the judgment. In some appeals, the appellant can only do this by misstating or mischaracterizing facts or advancing a patently incorrect formulation of the law. Such cases are easy for respondents' counsel. The other type of easy case is where the appellant ignores the standard of review and attempts to convince the court to re-try the case. The tougher cases are the ones where an error has occurred. Bearing in mind that factums and oral argument are subject to length limits (oral argument for the respondent is usually less than for the appellant), respondent's counsel must decide how much made during the course of trial, as opposed to how much should be devoted to

20 distance themselves from the case if they decide to do the appeal themselves some significant on appeal. Indeed, sometimes counsel can rue some of those victories as ingredients of success. 20 minimizing its significance. Sometimes, the indefensible must be recognized as such. Indeed, sometimes, the respondent is well advised to acknowledge that a part of the award cannot stand and aim to preserve what can be defended. Putting a case on appeal into the best possible requires counsel to select the most important facts, package them concisely, yet vividly, and link them efficiently to both the overall factual context and the applicable legal principles. It also requires trial counsel to of the hard fought skirmishes won along the route to victory at trial may not be they may potentially lead to reversal on appeal. Finally, counsel should recognize that, while appellate judges are usually sympathetic to the plight of injured plaintiffs, their duty requires them to do justice to both plaintiffs and defendants. Thus, while your case on appeal should be argued passionately, appeals to sympathy may highlight weaknesses in your case. Getting the facts right, putting them in to the right context, advancing the right law, and getting quickly to the point are the C: Documents and Settings kfs My Documents Recovered OTLA.doc