Simon looking earnest in Preveza, Greece

SimonShields@isp.com

Online Lawyer (Ontario)

Legal Guides
tenant / small claims / welfare (ontario works) / odsp / human rights / employment / consumer /
collection agencies / criminal injuries compensation / sppa (admin law) / animal cruelty / dogs & cats / wild animal law (all Canada)

home / about / *NEW GUIDE IDEAS* / testimonials / Conditions of Use

Are Debt Collectors
After You?



THE LATEST WORD
... what's this?

Standard of Review

In Fernandes v. Penncorp Life Insurance Company (Ont CA, 2014) the Court of Appeal stated as follows on the standard of appellate review:
[97] The applicable principles for appellate review of damage awards are described by Viscount Simon in Nance v. British Columbia Electric R. Co., [1951] 3 D.L.R. 705, at p. 713:
The principles which apply under this head are not in doubt. Whether the assessment of damages be by a Judge or a jury, the Appellate Court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a Judge sitting alone, then, before the Appellate Court can properly intervene, it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage [citations omitted].
[98] This decision has been repeatedly affirmed by this court. See for example, Barrick Gold Corporation v. Lopehandia 2004 CanLII 12938 (ON CA), (2004), 71 O.R. (3d) 416.
In this personal injury jury case, Hansen v. Williams (Ont CA, 2014), the Court commented as follows on it's role in the review of the quantum of jury awards for non-pecuniary damages ('pain and suffering'):
[12] An appellate court is not to interfere with a jury’s damage award unless the award is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it: McLean v. McCannell, 1937 CanLII 1 (SCC), [1937] S.C.R. 341, at p. 343; Housen v. Nikolaisen, 2002 SCC 33 (CanLII), 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 30. This is a very high threshold. Appellate courts are not entitled to substitute their own awards in place of jury awards simply because they would have arrived at a different amount: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 158.
In TMS Lighting Ltd. v. KJS Transport Inc. (Ont CA, 2014) the court commented on the appellate standard of review for damages quantum:
[60] At the outset, I acknowledge that a trial judge’s assessment of damages attracts considerable deference from a reviewing court. Appellate interference with a damages award at trial, particularly an award made by a trial judge sitting alone, is justified only where the trial judge made an error in principle, misapprehended the evidence, failed to consider relevant factors, considered irrelevant factors, made an award without any evidentiary foundation, or otherwise made a wholly erroneous assessment of damages: Kerr v. Baranow, 2011 SCC 10 (CanLII), 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 158; Magnussen Furniture Inc. (c.o.b. Magnussen/Presidential Furniture) v. Mylex Ltd., 2008 ONCA 186 (CanLII), 2008 ONCA 186, 89 O.R. (3d) 401, at para. 71; Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58 (CanLII), 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80.
Law Society Number #37308N / Website © Simon Shields 2005-2019