Simon's Megalomaniacal Legal Resources

Appeal - Standard of Review - By Topic (4)

. Henry v. Zaitlen [civil jury verdicts]

In Henry v. Zaitlen (Ont CA, 2024) the Ontario Court of Appeal considered a medical malpractice appeal, here from a civil jury trial.

Here the court considers the appellate standard of review (SOR) for civil jury trials:

(1) The standard of review of civil jury verdicts

[29] The standard of review of civil jury verdicts is well-established. Assuming a jury was properly instructed, its verdict should not be set aside “unless it 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; Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146; Goodwin (Litigation Guardian of) v. Olupona, 2013 ONCA 259, 305 O.A.C. 245; Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, and Cheung v. Samra, 2022 ONCA 195. The standard of review of civil jury verdicts is “exceptionally high”: Cheung, at para. 50, citing Stilwell, at para. 33. So long as there is some evidence to support it, a civil jury’s verdict will be accorded a high degree of deference: Sacks, at para. 133; Gutbir (Litigation guardian of) v. University Health Network, 2012 ONCA 66, 287 O.A.C. 223, at para. 5.

[30] This high degree of deference does not strip the appellate court of the ability to set aside a civil jury verdict if it is plainly unreasonable and unjust. Civil juries are not infallible, and their verdicts should not be regarded with awe: El Dali v. Panjalingam, 2013 ONCA 24, 113 O.R. (3d) 721, at para. 16; Vancouver-Fraser Park District v. Olmstead, 1974 CanLII 196 (SCC), [1975] 2 S.C.R. 831, at p. 839. Civil jury verdicts have been set aside in cases such as Vancouver-Fraser Park District; Graham v. Hodgkinson (1983), 1983 CanLII 1775 (ON CA), 40 O.R. (2d) 697 (C.A.); Adam v. Campbell (1950), 1950 CanLII 326 (SCC), 3 D.L.R. 449 (S.C.C.); Hackman v. Vecchio (1969), 1969 CanLII 796 (BC CA), 4 D.L.R. (3d) 444 (B.C.C.A.). These are exceptional cases, however. Given the latitude that civil juries have in deciding to accept or reject evidence, an appellate court will not interfere with a civil jury verdict unless it lacks any evidentiary foundation or is clearly incompatible with any reasonable assessment of the evidence.[1]

....

[42] In a civil appeal of a jury verdict, an appellate court’s role is not to reweigh the evidence or consider whether most judges would have reached the same conclusion as the jury. There was an evidentiary basis, recognized by the trial judge in his instructions, to conclude that Dr. Zaitlen breached the standard of care. The jury’s verdict is entitled to great deference. I would accordingly reject this ground of appeal.

. Palmer v. Teva Canada Limited [striking pleadings/class action certification 5(1)(a)]

In Palmer v. Teva Canada Limited (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against a lower court dismissal of a class action certification motion.

Here the court identifies the SOR for the certification element of 'disclosing a cause of action' [CPA s.5(1)(a)] as correctness (ie. error of law):

[29] The standard of review applicable to a motion judge’s determination of law that a claim discloses no reasonable cause of action is correctness: Bowman v. Ontario, 2022 ONCA 477, 162 O.R. (3d) 561, at para. 26.

. Brink v. Canada [striking pleadings]

In Brink v. Canada (Fed CA, 2024) the Federal Court of Appeal considered the appellate standard of review (SOR) for issues of striking of pleadings, and as well here for the related legal step of certification of a class action:

V. Standard of Review

[40] Whether a pleading discloses a cause of action is primarily a question of law. The standard of appellate review of the Federal Court’s decision on both the motion to strike and the first certification condition is thus that of correctness: Canada (Attorney General) v. Nasogaluak, 2023 FCA 61 at para. 21; Pioneer Corp. v. Godfrey, 2019 SCC 42 at para. 57; Canada (Attorney General) v. Jost, 2020 FCA 212 at para. 21. On this standard, this Court owes no deference to the Federal Court: Housen v. Nikolaisen, 2002 SCC 33 at para. 8.

. 1307839 Ontario Limited et. al. v. Klotz Associates et. al.

In 1307839 Ontario Limited et. al. v. Klotz Associates et. al. (Div Court, 2024) the Divisional Court considered the appellate SOR for issues of privilege:

[19] A determination of whether evidence is privileged is a question of law and so the applicable standard of review on appeal is correctness: see Leadbeater v. Ontario, 2004 CanLII 14107 (ON SC), 70 O.R. (3d) 224, at para. 29; Kennedy v. McKenzie, 17 C.P.C. (6th) 229, at para. 15; and Laliberté v. Monteith, 2021 ONSC 4133, 155 O.R. (3d) 596 (Ont. Div. Ct.), at para. 24.