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Appeal-Judicial Review - Must Make Objections at Trial/Hearing

. R. v. Dinall

In R. v. Dinall (Ont CA, 2023) the Court of Appeal considered the appeal effect of failure to object at trial:
[30] I see no merit in this ground of appeal.

[31] First, Mr. Dinall did not object to the jury charge at the time it was delivered. While this is not determinative, it is nevertheless relevant: R. v. Chambers, 2023 ONCA 444, at para. 54; R. v. Laforme, 2022 ONCA 395, at para. 31; R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 146.
. Ontario (Attorney General) v. Trinity Bible Chapel

In Ontario (Attorney General) v. Trinity Bible Chapel (Ont CA, 2023) the Court of Appeal considered a church group's appeal against a dismissal of their Charter s.52 declaration application involving the COVID provisions of the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.

In this quote the court applies the rule that an appellant cannot appeal against evidence admitted where they did not object to it's admission at the lower court:
[43] ... Furthermore, while the appellants submit they did not object at first instance because they could not know the motion judge would rely on this evidence in the manner she did, the time to object to evidence is when it is put before the judge, not after the judge renders a decision. I see no reason to depart from the general rule that a party cannot appeal based on some aspect of the lower court proceeding such as the admissibility of evidence to which it did not object: see e.g., Hoang (Litigation guardian of) v. Vicentini, [2016] O.J. No. 5140, 2016 ONCA 723, 352 O.A.C. 358, at para. 63; and Parliament (Litigation guardian of) v. Conley, 2021 ONCA 261, 155 O.R. (3d) 161, at paras. 63-66.
. Parliament v. Conley

In Parliament v. Conley (Ont CA, 2021) the Court of Appeal considered the appeal implications of failure to object at trial:
[63] The general principle is that a party in a civil case should not bring an appeal on the basis of some aspect of the lower court proceeding to which it did not object: see Marshall v. Watson Wyatt & Co. (2002), 2002 CanLII 13354 (ON CA), 209 D.L.R. (4th) 411 (Ont. C.A.), at para. 15; Harris v. Leikin Group Inc., 2014 ONCA 479, 120 O.R. (3d) 508, at para. 53; and Maurice v. Alles, 2016 ONCA 287, 130 O.R. (3d) 452, at para. 25. A party’s failure to object at trial weighs heavily against that party now bringing an appeal because it indicates that trial counsel did not consider that point to be important or of sufficient consequence to require an objection: see Arland and Arland v. Taylor, 1955 CanLII 145 (ON CA), [1955] 3 D.L.R. 358 (Ont. C.A.), at p. 361; Marshall, at para. 15.

[64] An appellant cannot ask for a new trial as of right due to an error during the trial when no objection was made on the point at trial. The failure to have objected at trial is not treated lightly by an appellate court and is usually fatal to an appeal on that point: see Arland, at p. 361; G.K. v. D.K., 1999 CanLII 935 (Ont. C.A.), at para. 15, leave to appeal refused, [2000] S.C.C.A. No. 415; Marshall, at para. 15.

[65] This principle has been invoked in connection with an appellant’s failure at trial to object to a jury instruction or charge: see e.g. Bruff-Murphy, at para. 69; Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board, 2004 CanLII 874 (Ont. C.A.), at para. 22. It is also applicable on the issue of the admissibility of evidence, as an objection to the admissibility of evidence on appeal will not usually succeed unless the objection is made at trial: see Hoang v. Vicentini, 2016 ONCA 723, 352 O.A.C. 358, at para. 63; Marshall at paras. 15, 30; and Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at para. 2.109.

[66] A new trial may be ordered in such cases, however, when the court is satisfied that a new trial is necessary in the interests of justice: see Arland, at p. 361; Marshall at para. 15. When an objection is made on appeal that was not made at trial, the focus should be on the question of whether a substantial wrong or miscarriage of justice has occurred: see Marshall at paras. 14-15; Arland at pp. 364-65; Pietkiewicz at paras. 22-28.
. Harris v. Leikin Group Inc.

In Harris v. Leikin Group Inc. (Ont CA, 2014) the Court of Appeal made the following useful appeal practice point:
[53] As a general rule, a party to a civil action cannot appeal on the basis of some aspect of trial procedure to which it did not object or sit on an objection only to raise it once it learns of an unfavourable result: see Marshall v. Watson Wyatt & Co. 2002 CanLII 13354 (ON CA), (2002), 57 O.R. (3d) 813 (C.A.), at paras. 14-15; Leader Media Productions Ltd. v. Sentinel Hill Alliance Atlantis Equicap Limited Partnership 2008 ONCA 463 (CanLII), (2008), 90 O.R. (3d) 561 (C.A.), leave to appeal refused, [2008] S.C.C.A. No. 394, at paras. 50-51.


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Last modified: 10-07-23
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