Appeals - Grant with Terms versus New Trial. Markham (City) v. AIG Insurance Company of Canada
In Markham (City) v. AIG Insurance Company of Canada (Ont CA, 2020) the Court of Appeal addressed an interesting case where two insurers where both involved in a municipality's liability for a hockey accident. The case involved respective issues of duty to defend and to instruct counsel and required the court to exercise it's rarely used power on appeals to structure the order:
 However, if AIG is to retain its right to participate in the defence, a few additional terms are warranted. This court imposes these additional obligations in accordance with AIG’s acknowledgment of the “balanced screen” approach set out in PCL Constructors Canada and its powers under the Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 134(1)(a) as follows:. Bruno v. Dacosta
a) The terms of this proposal must be provided in writing to those involved in managing the defence;UPS Supply Chain Solutions, Inc. v. Airon HVAC Service Ltd., 2015 ONSC 3104, 49 C.C.L.I. (5th) 201, at para. 31; PCL Constructors Canada, at para. 93.
b) Counsel appointed would be instructed to fully and promptly inform the City and Lloyd’s of all steps taken in the defence of the litigation against the City such that each would be in a position to monitor the defence effectively and address any concerns;
c) Defence counsel must have no discussion about the case with either coverage counsel; and
d) Counsel must provide identical and concurrent reports to the insured and both insurers regarding the defence of the main action.
In Bruno v. Dacosta (Ont CA, 2020) the Court of Appeal considered the civil appeal issue of when the appeal court may salvage a ruling below for inadequate reasons, or when it must order a new trial:
(2) When Appellate Courts can Salvage a Judgment for which there are Insufficient Trial Reasons; the Governing Principles. Earl v. McAllister
 I begin with the observation that this court is reluctant to order a new trial in civil matters. A new trial "should not be ordered unless the interests of justice plainly require that to be done": Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at para. 6; see also Nemchin v. Green, 2019 ONCA 634, 147 O.R. (3d) 530, at para. 71. The court must find a real prospect "that a substantial wrong or miscarriage of justice has occurred": Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6); Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342, at para. 7; see also Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 23.
 Insufficient reasons necessitate a new trial where the appellate court is unable to salvage the decision based on the available record. On what basis is that determination made?
 In Sheppard, Binnie J. wrote, at para. 55: “Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such a case for a new trial” (emphasis added). But the converse is also true. To paraphrase: Where the trial decision is deficient in explaining the result to the parties, and the appeal court does not consider itself able to do so, a new trial may be needed. This is a case-specific assessment.
 In assessing the trial judge’s reasons for sufficiency, “the reviewing court must examine the evidence and determine whether the reasons [for judgment] are, in fact, patent on the record”: R. v. Dinardo, 2008 SCC 24,  1 S.C.R. 788, at para. 32, per Charron J., who ordered a new trial. An appellate court must review the record to determine whether the trial decision can be rendered more comprehensible when read in the context of the record: see Maple Ridge Community Management Ltd. v. Peel Condominium Corporation, 2015 ONCA 520, 389 D.L.R. (4th) 711, at para. 30, per Hourigan J.A., citing Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41,  3 S.C.R. 129, at para. 101.
 However, there are limits on the appellate court’s ability to fairly and justly salvage a trial decision: “Where the trial judge’s reasoning is not apparent from the reasons or the record … the appeal court ought not to substitute its own analysis for that of the trial judge”: Dinardo, per Charron J., at para. 32. She added that the need to review the record is “not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trial judge.”
 This court usually declines to dig into the record in order to salvage a decision where the trial decision turns on instances of conflicting evidence, evaluations of credibility and reliability, and exercises of discretion that are properly within the purview of a trial judge. I discuss each situation in turn.
(a) Conflicting Evidence
 This court does not attempt to reconcile critical conflicting evidence that could affect the outcome. In R. v. Prokofiew, 2008 ONCA 585, Borins J.A. reviewed the reasons of a trial judge following a trial for conspiracy, fraud, and theft over $5,000. The trial had taken place intermittently over seven months. Nearly one year later, the trial judge released very extensive reasons for conviction. Borins J.A. noted, at para. 30: “My main problem with the trial judge’s reasons is that she made so few findings of fact on her way to the conclusory finding that each appellant was guilty as charged.” He added: “Because reasons for conviction were not patent on the record, I am unable to determine the analytical path she followed in convicting the appellants.”
 Similarly, R. v. Capano, 2014 ONCA 599 concerned a trial judge’s consideration of the test for finding an accused to be “not criminally responsible” (“NCR”). The trial judge had not specifically articulated whether the accused’s mental disorder rendered the accused incapable of appreciating the nature and quality of the criminal act, on the one hand, or whether it rendered the accused incapable of knowing that the act was wrong, on the other hand. Faced with conflicting evidence in the trial record and the trial judge’s failure to expressly resolve this conflict in the evidence, this court ordered a new trial. Epstein J.A. noted, at para. 73: “Given the two possible ways in which Mr. Capano’s mental disorder may have affected his ability to understand that failing to report to CAMH was wrong, it was critical that the trial judge analyze and resolve how he found Mr. Capano NCR.” She stated, at para. 74, relying on Dinardo, that “it is not appropriate for this court to attempt to discern that route and explain it.”
(b) Credibility and Reliability
 This same appellate reluctance applies to critical determinations of credibility and reliability. A trial judge’s failure to “sufficiently articulate how credibility and reliability concerns are resolved may constitute reversible error”: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 18, citing R. v. Vuradin, 2013 SCC 38,  2 SCR 639, at para. 11, and Dinardo, at para. 26.
 In R. v. Slatter, 2019 ONCA 807, 148 O.R. (3d) 81, Trotter J.A. commented on a trial judge’s reliability findings, at para. 66:
Although the trial judge relied on Dr. Jones’ evidence in this context, he failed to mention her evidence concerning J.M.’s suggestibility. The issue was clearly grounded in the evidentiary record. It was emphasized in defence counsel’s closing submissions. Yet, because there is no attempt to address or reconcile this evidence in the trial judge’s reasons, we are left to speculate whether the trial judge appreciated the significance of this evidence and the role (if any) that it played in his ultimate findings. [Emphasis added.](c) Discretionary Decisions
 Finally, this court is reluctant to make discretionary decisions that are properly within the purview of the trial judge. In R. v. Sahdev, 2017 ONCA 900, 356 C.C.C. (3d) 137, per Trotter J.A., the trial judge did not provide adequate reasons for refusing to sever counts in a criminal indictment. This court rejected the Crown’s request to decide the issue. The severance issue was complicated by a similar fact issue and required a trial judge’s exercise of discretion in a new trial.
In Earl v. McAllister (Div Ct, 2021) the Divisional Court considered on a successful appeal when to send the matter back down or to decide it themselves:
 Section 134(1)(a) of the Courts of Justice Act, empowers an appellate court to make an order or decision that ought to or could have been made by the court or tribunal appeared from. Although, more typically, when an appellate court determines that an error had a bearing on the outcome of a lower court’s decision, the matter is remitted to that court for determination, in circumstances where the appellate court has a complete record, the final resolution of the dispute has already been delayed, and there is no special advantage in remitting the matter back to the court in first instance, it will be appropriate for the appellate court to finally determine the issues between the parties: Hollis v. Dell Corning Corp., 1995 CanLII 55 (SCC),  4 S.C.R. 634, per Sopinka J. (dissenting on other issues), at para. 95.. Pourshian v. Walt Disney Company
In Pourshian v. Walt Disney Company (Div Ct, 2021) the Divisional Court decided that it could substitute it's own order on an appeal under CJA 134(1)(a):
 Section 134(1)(a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, empowers an appellate court to make an order or decision that ought to or could have been made by the court from which the appeal arises. Generally, when an appellate court determines that an error may have affected the outcome of a lower court’s decision, the matter is remitted to that court for determination. However, in circumstances where the appellate court has a complete record, the final resolution of the dispute has already been delayed and there is no special advantage in remitting the matter back to the court in first instance, it will be appropriate for the appellate court to finally determine the issues between the parties: Hollis v. Dell Corning Corp., 1995 CanLII 55 (SCC),  4 S.C.R. 634, per Sopinka J. (dissenting on other issues): at para. 95. This is such a case. Given that the motion was argued on the basis of the statement of claim and affidavit evidence, there would be no utility in sending the matter back to be decided by a Master and doing so would have the effect of further delaying the proceedings. Accordingly, I proceed below to determine whether Ontario has jurisdiction over the claim against the defendants.. Royal Bank of Canada v. Rastogi
In Royal Bank of Canada v. Rastogi (Ont CA, 2020) the Court of Appeal converted a CJA 104(1) motion ["recovery of possession of personal property"] to a R20 summary judgment motion, using CJA 134(1)(a) [powers on appeal]:
Should the Motion be Treated as a Motion for Summary Judgment Under Rule 20?
 Rule 37.13(2)(a) states:
A judge who hears a motion may, The motion judge was not asked to, and did not exercise the power under rule 37.13(2)(a). This court can, however, make the same order: s. 134(1)(a) of the Courts of Justice Act.
(a) in a proper case, order that the motion be converted into a motion for judgment;
 An order in the terms contemplated by rule 37.13(2)(a) is discretionary and is clearly not one that will be easily or routinely granted. In CMLQ Investors Company v. CIBC Trust Corporation (1996), 3 C.P.C. (4th) 62 (Ont. C.A.), this court affirmed a motion judge’s exercise of the rule 37.13(2)(a) discretion to grant judgment on a motion for a trial of an issue. The motion judge granted a declaratory judgment and directed a trial on the question of damages. In upholding that decision, this court said at para. 8:
[W]here all of the necessary evidence is before the judge on the motion, and where the parties have had full opportunity of arguing their positions, as was the case here, there is nothing to be gained by either party by adding further proceedings to those already taken. Counsel for the appellants does not suggest that the record before the motion judge did not contain all of the evidence necessary to determine whether Rastogi was entitled to summary judgment on the issue of his entitlement to the release of the funds held by RBC Direct and TD. The record was extensive. Detailed facta were also filed. 
 Counsel for the appellants also does not suggest that RBC did not have a full opportunity to put forward its case on the issue of Rastogi’s entitlement to the funds in the accounts. As I read counsel’s factum, he invites the court to treat this as if it were a motion for summary judgment. Counsel forcefully argues that on the motion record, Rastogi failed to establish that there were no genuine issues requiring a trial in respect of his entitlement to those funds. While counsel for RBC has no difficulty treating this as a motion for summary judgment, counsel for Rastogi contends that it would be unfair to do so as that would put the onus on Rastogi to show that there is no triable issue with respect to his entitlement to the funds.
 I agree with counsel for the appellants that Rastogi’s claim to an entitlement to the funds in his RBC Direct and TD accounts can be properly and fairly resolved on this motion. There is no need for further proceedings to make a proper determination on that issue. Nor, given my assessment of the merits, is there any prejudice to Rastogi.