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Appeals - Standard of Review - By Topic (3). R. v. MacMillan [expert evidence]
In R. v. MacMillan (Ont CA, 2023) the Court of Appeal considers the appellate SOR for expert evidence:[25] Appellate courts owe deference to trial judges’ decisions to admit expert evidence, “unless the trial judge commits an error of principle, materially misapprehends the evidence, or reaches an unreasonable conclusion”: see R. v. Whatcott, 2023 ONCA 536. The trial judge committed no such error in deciding to admit Dr. Sampsel’s evidence. . LeGrand v. LeGrand [contempt penalty]
In LeGrand v. LeGrand (Div Court, 2023) the Divisional Court considered the appellate SOR for a contempt penalty:[30] ... The exercise of discretion as to penalty for contempt is reviewed on a deferential standard unless the court below has proceeded on a wrong principle or has failed to take any or appropriate account of relevant factors on penalty. . Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione [motion]
In Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione (Div Court, 2023) the Divisional Court considered the SOR for an appeal of a motion ruling:[11] Deference should be given to a motion judge’s decision and an appellate court should intervene only if the motion judge misdirected himself, came to a decision that is so clearly wrong as to be an injustice, or gave no or insufficient weight to relevant considerations: see Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, at para. 38. . Di Filippo v. Bank of Nova Scotia [various limitations]
In Di Filippo v. Bank of Nova Scotia (Ont CA, 2023) the Court of Appeal considered related limitation SORs within a single class action:A. Standard of Review
[21] A finding that a proposed amendment constitutes a new claim “is a legal determination, which is subject to the correctness standard of review on appeal”: Polla v. Croatian Credit (Toronto) Union Limited, 2020 ONCA 818, at para. 31, citing Blueberry River First Nation v. Laird, 2020 BCCA 76, 32 B.C.L.R. (6th) 287, at paras. 20-21; and Strathan Corporation v. Khan, 2019 ONCA 418 (Ont. C.A.), at paras. 7-8.
[22] The question whether a limitation period has commenced is “typically a question of mixed fact and law and therefore subject to review on a ‘palpable and overriding error’”: Crombie Property Holdings Ltd. v. McColl-Frontenac Inc., 2017 ONCA 16, 406 D.L.R. (4th) 252, at para. 30. However, where there is an extricable error in principle, the standard of review is correctness: Fercan Developments Inc. v. Canada (Attorney General), 2021 ONCA 251, 157 O.R. (3d) 81, at para. 11; see e.g., Kaynes v. BP p.l.c., 2021 ONCA 36, 456 D.L.R. (4th) 247, at para. 24.
[23] The facts relevant to the limitation period issues in this case are not in dispute. The only question is whether the motion judge erred in finding that the plaintiffs had actual knowledge of their claims as of March 27, 2018 within the meaning of s. 5(1)(a) of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Like in Kaynes, where the issue was similarly whether knowledge of U.S. pleadings was sufficient at law to trigger the commencement of the limitation period, the standard of review with respect to this finding is correctness. . Walsh v. Tober [summary judgment]
In Walsh v. Tober (Div Court, 2023) the Divisional Court sets out the SOR for a summary judgment decision, here in a family law appeal:[29] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 80-84, the Supreme Court of Canada addressed the application of the appellate standards of review in the context of a summary judgment motion. Relying on the principles in Housen, the Supreme Court found as follows:a. Absent an error of law, the motion judge’s exercise of powers under the summary judgment rule attracts deference;
b. Where the motion judge exercises their statutory powers and determines whether there is a genuine issue requiring a trial, that is a question of mixed fact and law, reviewable on the standard set out in Housen; and
c. Such deference is also owed to the determination of whether it is in the “interests of justice” for the motion judge to exercise their fact-finding powers in determining whether to grant summary judgment: see FLR, rr. 16(6), 16(6.1); Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“RCP”), rr. 20.04(2), 20.04(2.1). . Baker v. Blue Cross Life Insurance Company of Canada [punitive/jury]
In Baker v. Blue Cross Life Insurance Company of Canada (Ont CA, 2023) the Court of Appeal considers the appellate SOR applying to an award of punitive damages, here in the context of long-term disability insurance litigation before a jury:B. ANALYSIS
(1) Punitive Damages Award
(a) Standard of Review
[14] During his oral submissions, counsel for Blue Cross submitted that the appropriate standard of review when considering a jury’s award of punitive damages on appeal is correctness. This submission was not in Blue Cross’ factum, and counsel conceded that it finds no support in Canadian jurisprudence. It is unpersuasive. However, it is essential to consider the standard of review before examining the evidence in the instant case.
[15] As in many cases where the defendants are insurance companies, or they insure named defendants, Blue Cross served a jury notice. Insurance companies often seek to have cases tried by juries. The thinking behind this strategy is that a jury may be more inclined than a judge to decline to award damages or, at least, will likely award less damages than a judge. A plaintiff who chooses a jury is making an opposite assessment. At its essence, then, the choice of a civil jury is a strategy that aims to improve a party’s odds of achieving a favourable outcome. In making that choice, a party is also taking certain calculated risks. The first and most obvious risk is that the jury might render a verdict more generous to the other side than a judge would. A second risk – one that arises if the jury’s verdict is unfavourable – is that an appellate court has less scope to interfere than it would with a judge’s reasons. It is this second risk that I will discuss next.
[16] Because juries do not provide reasons, an appellate court generally has a more limited basis to interfere with their verdicts. We are not in a position where we can carefully scrutinize the jury’s chain of reasoning. That is why, generally, appellate courts take a deferential approach to reviewing jury verdicts. In explaining the rationale underlying this approach, I can do no better than to cite the comments of Chief Justice Laskin in his dissent in Wade v. C.N.R., 1977 CanLII 194 (SCC), [1978] 1 S.C.R. 1064, at pp. 1069-1070:Appeal Courts do not fine-comb jury answers but accord them the respect of a common sense interpretation even where there may be some ambiguity in the answers. ... It is always timely to be reminded that juries do not write reasons for judgment, and their answers must be taken against the background of the evidence from which they are entitled to select, without manifesting their selection, what is credible, what is significant, what is persuasive to them. It is very often easy for an appellate Court, in the leisurely scrutiny of the transcript, to find significance in pieces of evidence to contradict jury findings, and in so doing to usurp the jury’s function. What an appellate Court may believe from a reading of the transcript may be the very things which a jury disbelieved or believed in part only. It is one thing to interfere with a jury’s verdict where there is simply no evidence to support its findings or to support a critical one; it is a different thing, and not to be encouraged, to interfere with its findings where there is evidence, however slight, on which they may be based, but where because of offsetting evidence a question of credit and weight arises. These are matters for the jury alone. [17] Despite the foregoing, the role of an appellate court is different when it comes to reviewing an award of punitive damages. These damages are not at large, and consequently, it has been held that courts have greater scope to interfere with such awards. The leading cases on this point are Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 and Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, which provide guidance regarding the appropriate standard of review.
[18] In discussing appellate review of punitive damages awards, Cory J. in Hill, at para. 197, stated:[C]ourts have a much greater scope and discretion on appeal. The appellate review should be based on the court’s estimation as to whether the punitive damages serve a rational purpose. In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence? [19] This rationality test applies to whether an award of punitive damages should be made and to the issue of its quantum: Whiten, at para. 101. The focus is on whether the award is the product of reason and rationality, and the question is “whether the court’s sense of reason is offended rather than on whether its conscience is shocked”: Whiten, at para. 108.
[20] Regarding the quantum of a punitive damages award, in Whiten, Binnie, J. built on the dicta from Hill, stating, at para. 107:In Hill ... Cory J., while emphasizing the overriding obligation of rationality, also recognized that the jury must be given some leeway to do its job. The issue of punitive damages, after all, is a matter that has been confided in the first instance to their discretion. Thus, to be reversed, their award of punitive damages must be “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate” (para. 159). Putting these two notions together, the test is whether a reasonable jury, properly instructed, could have concluded that an award in that amount, and no less, was rationally required to punish the defendant’s misconduct. [21] Although the standard of review is different when it comes to a punitive damages award compared to other jury damages awards, in considering whether the jury’s decision is the product of reason and rationality, this court is faced with the same realities described by Chief Justice Laskin. We must consider the evidence before the jury without knowing with precision what weight it gave to it, what it found to be credible, what it thought was most relevant, and what it drew from the failure of a party to provide evidence. Thus, by necessity, we cannot conduct the type of detailed review that we undertake when reviewing a judge’s reasons for decision. Instead, we must consider whether there was an evidentiary basis that would rationally lead to a punitive damages award and, if so, whether the quantum awarded was also rationally connected to the evidence and the purposes of punitive damages. It is this review of the evidence that I will turn to next. . Boal v. International Capital Management Inc. [class action certification]
In Boal v. International Capital Management Inc. (Ont CA, 2023) the Court of Appeal considered (and allowed) an appeal from a class action order striking a claim for not properly alleging "a cause of action for breach of fiduciary duty between certain investment advisors and a group of their clients".
In these quotes the court considers the SOR for class action certification, specifically the element of whether "the pleadings or the notice of application discloses a cause of action":III. THE STANDARD OF REVIEW
[30] The certification judge refused to certify this proceeding, principally on the basis that the Claim did not disclose a cause of action for breach of a fiduciary duty on a class-wide basis, as required by s. 5(1)(a) of the CPA. The test under s. 5(1)(a) is the same as the test on a motion to strike for no reasonable cause of action: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, at para. 63. That test is whether, assuming the facts pleaded to be true, it is “plain and obvious” the claim has no reasonable prospect of success: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 25.
[31] Whether the cause of action criterion is met is reviewable on a correctness standard: Hodge v. Neinstein, 2017 ONCA 494, 136 O.R. (3d) 81, at para. 52, leave to appeal refused, [2017] S.C.C.A. No. 341. Therefore, this court must review the Majority Decision on the cause of action criterion on a correctness standard.
. S.E.C. v. M.P. [sealing orders]
In S.E.C. v. M.P. (Ont CA, 2023) the Court of Appeal considered the SOR for appeals of sealing orders:[29] ... The determination of whether a sealing order is warranted under the test in Sherman is one of mixed fact and law. ... . The Rosseau Group Inc. v. 2528061 Ontario Inc. [damages]
In The Rosseau Group Inc. v. 2528061 Ontario Inc. (Ont CA, 2023) the Court of Appeal considers the appellate standard of review for damages issues:[59] A trial judge’s assessment of damages attracts considerable deference on appeal. However, an assessment made on the basis of an error of principle or law may be interfered with on appeal: SFC Litigation Trust v. Chan, 2019 ONCA 525, 147 O.R. (3d) 145, at para. 112, leave to appeal refused [2019] S.C.C.A. No. 314. . Rivard v. Kingston Police ['no reasonable cause of action or defence': R21.01(1)(b)]
In Rivard v. Kingston Police (Div Court, 2023) the Divisional Court considered an appeal (with leave) of an interlocutory order dismissing a "motion to strike out an amended statement of claim" under R21.01(1)(b) ['no reasonable cause of action or defence'] and R25.11 ['Striking out a Pleading or Other Document'].
Here the court considers the applicable appellate SOR for striking pleadings, here under R21.01(1)(b):[6] As per the Court of Appeal for Ontario in McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 38, the standard of review on a rule 21.01(1)(b) appeal is correctness . 40 Days for Life v. Dietrich
In 40 Days for Life v. Dietrich (Div Court, 2023) the Divisional Court set out the SOR for an appeal of an interlocutory injunction:[22] On an appeal from an interlocutory injunction, unless the motion judge erred in principle or was clearly wrong, the appellate court must defer to the motion judge’s discretion: see Easyfinancial Services Inc. v. Ezmoney Tario Inc., 2018 ONSC 1542 (Div. Ct.), at para. 9. . Oz Optics Limited v. Summers [wrongful dismissal]
In Oz Optics Limited v. Summers (Div Court, 2023) the Divisional Court considered the SOR for appellate issues of wrongful dismissal and interpretation of employment contracts:[7] A judge’s interpretation of an employment contract is a question of mixed fact and law, to be reviewed on the standard of palpable and overriding error: see Singh v. Adecco Employment Services Limited, 2019 ONSC 1512, [2019] O.J. No. 1180 (Div. Ct.) at para. 4.
[8] The trial judge’s finding on the applicable common law notice period was one of mixed fact and law; the standard of review is therefore palpable and overriding error. The trial judge’s decision is entitled to deference; an appeal court is not to interfere or substitute its own figure for notice unless the damages awarded fall outside the normal range, there was an unreasonable finding of fact or if the trial judge committed an error in principle: see Minott v. O’Shanter Development Co., 1999 CanLII 3686 (ON CA), [1999] O.J. No. 5 (Ont. C.A.) at para. 62. . Musa v. Carleton Condominium Corporation No. 255 [negligence - standard of care/duty of care/causation]
In Musa v. Carleton Condominium Corporation No. 255 (Ont CA, 2023) the Court of Appeal considered a negligence 'slip and fall' case. Here the court considers the standard of review (SOR) for negligence 'standard of care' and 'duty of care':[25] ... In the negligence context, the determination of the duty of care is a question of law, and the application of the standard of care and the determination of the issue of causation are questions of mixed fact and law: Walters v. Ontario, 2017 ONCA 53, 136 O.R. (3d) 53, at para. 31. . Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC [patent validity]
In Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC (Fed CA, 2023) the Federal Court of Appeal considers the SOR for patent 'validity' issues:[60] Turning to the issues of anticipation, obviousness and overbreadth, as GreenBlue acknowledges, the Federal Court’s impugned findings can only be overturned if the Court made a palpable and overriding error since these findings are factual in nature: see e.g., Abbott Laboratories at para. 24 (on anticipation); SmithKline Beecham Pharma Inc. v. Apotex Inc., 2002 FCA 216, 219 D.L.R. (4th) 124 at para. 15 (on anticipation); Packers Plus Energy Services Inc. v. Essential Energy Services Ltd., 2019 FCA 96, 164 C.P.R. (4th) 191 at para. 29 [Packers] (on obviousness); Teva Canada Limited v. Pfizer Canada Inc., 2019 FCA 15, 163 CPR (4th) 265 at para. 23 (on obviousness); Seedlings Life Science Ventures, L.L.C. v. Pfizer Canada U.L.C., 2021 FCA 154, 339 A.C.W.S. (3d) 69 at para. 65 (on overbreadth). . Raponi v. Olympia Trust Company [class actions]
In Raponi v. Olympia Trust Company (Ont CA, 2023) the Court of Appeal considered a class action certification appeal where the action was dismissed, here in relation to a syndicated mortgage scheme:[28] It is common ground between the parties that the standard of review as to whether there is a cause of action for purposes of the CPA is correctness: Bowman v. Ontario, 2022 ONCA 477, 162 O.R. (3d) 561, at para. 26. . Bigeagle v. Canada [class action certification]
In Bigeagle v. Canada (Fed CA, 2023) the Federal Court of Appeal considered the standard of review for different aspects of an appeal from a denial of class action certification:[26] The assessment of the last four certification conditions (identification of a proper class, sufficient common questions, the preferable procedure, and representation by an adequate class representative) involves questions of fact or mixed fact and law, and is thus reviewable on the deferential standard of palpable and overriding error (Nasogaluak at para. 22; Canada v. John Doe, 2016 FCA 191 at para. 29). A palpable and overriding error is one that is obvious and affects the outcome of the case (Feeney v. Canada, 2022 FCA 190 at para. 4). . Eli Lilly Canada Inc. v. Apotex Inc. [patents]
In Eli Lilly Canada Inc. v. Apotex Inc. (Fed CA, 2023) the Federal Court of Appeal canvasses some patent standards of review (SOR):[32] Questions regarding the construction of claims and the construction of the inventive concept are questions of law (Apotex Inc. v. Allergan Inc., 2012 FCA 308, 105 C.P.R. (4th) 371 at paras. 50, 53, leave to appeal to the SCC refused, 35184 (9 May 2013)); Bristol-Myers Squibb Canada Co. v. Teva Canada Limited, 2017 FCA 76, 76 C.P.R. (4th) 216 at para. 74).
[33] Questions regarding whether the asserted claims are obvious raise findings of mixed fact and law, which, absent an extricable question of law, must be assessed using the standard of review of palpable and overriding error (Teva Canada Limited v. Pfizer Canada Inc., 2019 FCA 15, 163 C.P.R. (4th) 265 at para. 23 [Teva], Packers Plus Energy Services Inc. v. Essential Energy Services Inc., 2019 FCA 96, 164 C.P.R. (4th) 191 at paras. 29, 33, leave to appeal to SCC refused, 38694 (19 December 2019) [Packers Plus]).
[34] The failure to characterize a patent as a selection patent is not in itself an error of law but “may reflect a lack of understanding of the patent and its factual context” (Shire at para. 32). . Corion v Plummer [defamatory words]
In Corion v Plummer (Div Court, 2023) the Divisional Court set out the SOR for the words complained in a defamation action (it's an error of law), and thus subject to a correctness standard on appeal:[10] In defamation actions, the question of whether the words complained of can convey a defamatory meaning is a question of law: Canadian Broadcasting Corp. v. Color Your World Corp., 1998 CanLII 1983, 38 O.R. (3d) 97 (C.A.), at p. 106. . Trayanov v. Icetrading Inc. [setting aside noting in default]
In Trayanov v. Icetrading Inc. (Ont CA, 2023) the Court of Appeal holds that setting aside a noting in default is a discretionary decision and thus entitled to high deference:[15] A decision to refuse or to order the setting aside of a noting in default is discretionary and will only be reversed on appeal if the court proceeded on a wrong principle, gave no or insufficient weight to relevant factors, or where the decision is so clearly wrong it amounts to an injustice: Franchetti v. Huggins, 2022 ONCA 111, at para. 5; Intact Insurance Company v. Kisel, 2015 ONCA 205, 125 O.R. (3d) 365, at para. 12; Penner v. Niagara, 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27. . 1346134 Ontario Limited v. Wright [agency]
In 1346134 Ontario Limited v. Wright (Ont CA, 2023) the Court of Appeal considered the SOR for findings of agency:[48] The appellants argue that the trial judge erred in finding that OAL was 134’s agent. The existence of an agency relationship is a question of fact: 1195303 Ontario Inc. v. Glen Grove Suites Inc., 2015 ONCA 580, 337 O.A.C. 85, at para. 82. It is therefore entitled to deference, absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10. . Doucet v The Royal Winnipeg Ballet [for numbered case cites see the link] [class actions]
In Doucet v The Royal Winnipeg Ballet (Div Court, 2023) the Divisional Court considers the standard of review accorded to class proceedings:[14] Further, it has long been established that decisions of an experienced class proceedings judge are entitled to substantial deference and the intervention of the court should be limited to matters of principle, especially where the decision involves an exercise of discretion: Fantl v. Transamerica Life Canada, 2008 CanLII 63563 (ON SCDC), [2008] 244 O.A.C. 183 (Div. Ct.), at paras. 13 – 14.
[15] In my view, the overarching question is a matter of principle: should there ever be an honourarium awarded to a representative plaintiff or other class member/witness in a class action settlement? The class proceedings judge recognized the contrary law and said no. The related question is, if there is the possibility of such an award, what principles should apply? The standard of review for a discretionary decision does not arise here because the class proceedings judge did not go on to exercise his discretion given his decision on the overarching issue. I therefore conclude that the standard of review is correctness bearing in mind the expertise of the class proceedings judge. As it happens, the leading cases are also decided by expert class proceedings judges, as discussed below. . Watson v. Law Society of Ontario [the numbered case cites can be accessed at the main Canlii case] [relevance]
In Watson v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered the role of relevance in tribunal proceedings, including the appellate standard of review:[71] Relevance is a question of law.[67] As such, the tribunal is required to be correct on this issue. “To be relevant, the evidence must not only be logically relevant but must be sufficiently probative to justify admission.”[68] Relevance is both “a requirement that the evidence have a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence” (i.e., logical relevance) and “a requirement that evidence be not only logically relevant to a fact in issue, but also sufficiently probative to justify its admission despite the prejudice that may flow from its admission” (i.e., legal relevance).[69] ... . Fockler v. Speigel [limitations]
In Fockler v. Speigel (Ont CA, 2023) the Court of Appeal set out the SOR applicable to limitation decisions:[25] A finding that a limitation period applies is one of mixed fact and law, entitled to deference on appeal: Dass v. Kay, 2021 ONCA 565, at para. 29. ... . Sinclair v. Amex Canada Inc. [forum non conveniens]
In Sinclair v. Amex Canada Inc. (Ont CA, 2023) the Court of Appeal considering the appellate standard of review for PRIL issues of 'forum non conveniens':(4) The standard of review
[42] Although little turns on it in this case, I will address the applicable standard of review. In Kyko, Hoy J.A., writing for the court, said, at para. 13:Whether or not a motion judge has erred in the application of the test for jurisdiction simpliciter is a question of mixed fact and law, reviewable for palpable and overriding error, unless an error in the application of the test can be attributed to an extricable question of law. [Citation omitted.] [43] As I said earlier, the motion judge’s failure to consider the jurisdiction question from the point of view of the appellants, who were disputing jurisdiction, as opposed to the other defendants who were not, was a legal error in the application of the Van Breda test. It is thus a question to which the standard of review of correctness applies.
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