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Appeals - Grant with Terms versus New Trial. Vivekanantham v. Certas Direct Insurance Company
In Vivekanantham v. Certas Direct Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal, here where the issues were "a special award under s. 10 of Regulation 664 [SS: "Reg 664/90 Automobile Insurance, s.10 Dispute Resolution (Section 280 of the Act)"] and that the LAT breached procedural fairness when it admitted and relied on the report of Dr. Sivasubramanian in spite of the fact that he refused to attend the hearing and be cross-examined".
In this quote the court considered available appellate remedies, here drawn from Vavilov:[28] In applying the correctness standard, the court is free to replace the opinion of the tribunal with its own. However, the starting point remains the reasons provided by the LAT for its interpretation of the law. As stated in Canada (Minister of Citizenship of Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 54:When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view. While it should take the administrative decision maker’s reasoning into account – and, indeed, it may find that reasoning persuasive and adopt it – the reviewing court is ultimately empowered to come to its own conclusions on the question (cites omitted). [29] In this case neither the Hearing Decision nor the Reconsideration Decision contains any reasoning regarding the proper interpretation of s. 10. However, other LAT decisions have considered this question and their reasoning will be a starting point for my correctness analysis. . Canadian Pacific Railway Company v. Teamsters Canada Rail Conference
In Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Fed CA, 2024) the Federal Court of Appeal allowed an appeal from a finding of civil contempt, here in relation to a railway labour arbitration award.
Here the court discusses the various appeal remedies of remitting back down, new hearing and acquittal:[75] In light of the judge’s findings of fact there is no basis on which a judge, properly instructed to the law, could find contempt. This Court may make the judgment a trial court should have made based on the evidentiary record as found, or where "“the review required by the grounds of appeal consists of drawing conclusions from facts which are uncontested”" (Canada v. Piot, 2019 FCA 53, 437 D.L.R. (4th) 706 at para. 115; Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161, [2016] 4 F.C.R. D-13 at para. 153 [Pfizer]; see also Donald J.M. Brown, Civil Appeals (Toronto: Thomson Reuters, 2009), ch. 6 at 6:19). That is the case here.
[76] To remit the matter for re-hearing before the Federal Court on the expectation that a different judge might come to a different conclusion on the same evidence would raise concerns ringing of res judicata, issue estoppel and abuse of process. While arising in the context of a criminal appeal, the Supreme Court’s reasoning in R. Pittiman, 2006 SCC 9, [2006] 1 SCR 381 at para. 14 is apposite:Where a conviction is set aside on the ground that the verdict is unsupported by the evidence, the court of appeal, absent legal errors in respect of the admissibility of evidence, will usually enter an acquittal. As noted by Doherty J.A. in R. v. Harvey (2001), 2001 CanLII 24137 (ON CA), 160 C.C.C. (3d) 52 (Ont. C.A.), at para. 30, “[a]n acquittal is the appropriate order because it would be unfair to order a new trial and give the Crown a second opportunity to present a case on which a reasonable trier of fact could convict.” [77] A new trial is often ordered where there has been an error in the admissibility of evidence, such that the jury or judge made a determination on a faulty evidentiary foundation, or where there has been an error in the conduct of the trial itself (Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721 at para. 147; see Sopinka, The Conduct of an Appeal, 5th ed., (Toronto: LexisNexis, 2022), at pp. 296-297). A redetermination is often ordered where the case is factually complex, dependent on the testimony of witnesses, and the result is factually suffused and uncertain (Pfizer at para. 157). That is not the case here. The facts are not in issue, and the conduct of the trial is not in issue.
[78] A new trial or redetermination may also be ordered where there has been a change in the law (Pfizer at para. 160). That is also not the case here. The law did not change; it was misunderstood.
[79] Intent is a question of fact (Schuldt v. The Queen, [1985] 2 S.C.R. 592, 1985 CanLII 20 (SCC) at 599-600). However, where a trial judge errs as to the legal effect of settled facts, this becomes a question of law and an appellate court can "“disagree with the conclusion reached without trespassing on the fact-finding function of the trial judge”" (R. v. Morin, [1992] 3 S.C.R. 286, 1992 CanLII 40 (SCC) at 294). Applying the law to the facts as found by the Federal Court, I would allow the appeal and enter an acquittal. The appellant is entitled to costs in this Court and below. . Penate v. Martoglio
In Penate v. Martoglio (Ont CA, 2024) the Court of Appeal explained why a new trial was appropriate, while granting an appeal:[23] This Court’s ability to supplement the trial judge’s reasons by reviewing the record has limits. Sometimes, reviewing the record will clarify the trial judge’s reasons so that an appellate court can determine that they are sufficient and then explain them to the losing party: G.F., at para. 71; Bruno, at para. 23. But if the record does not make the trial judge’s reasoning apparent, it is not the appellate court’s role to perform its own analysis to resolve issues that the trial judge did not adequately address, especially if the resolution of those issues requires making findings or discretionary decisions: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32; Bruno, at paras. 24-27, 30; Sahdev, at paras. 44 & 46.
[24] Further, reviewing the record is not a licence to read in reasons that could have been given but were not: Vavilov, at paras. 97-98. Reviewing courts are not permitted to import different reasons that contradict the reasons that the trial judge actually gave. Rather, reviewing the record is limited in scope by its purpose: to clarify the trial judge’s reasons and make them more comprehensible: Bruno, at para. 23. . Leandro v. New Tecumseth (Town of)
In Leandro v. New Tecumseth (Town of) (Div Court, 2023) the Divisional Court considers (and allowed) an appeal from a denied application for a declaration that a cannabis operation was allowed under a zoning by-law.
In these quotes, while granting an appeal, the court considers the remedy of remitting (or as here, not remitting and deciding the main proceeding themselves), and how it effects future review rights (ie. the future 'appeal route'):This court should proceed to hear the application
[40] The Town did not dispute Mr. Leandro’s assertion that this court has the jurisdiction to hear the application and that deciding whether to do so involves the exercise of our discretion.
[41] The Town objects to this court’s exercising its discretion in favour of hearing the application (as opposed to referring it back to the Superior Court for a hearing), based on a potential, future effect on appeal rights. If the application is heard by a single judge of the Superior Court, an appeal lies to the Court of Appeal, as of right. If the application is heard by the Divisional Court, an appeal lies to the Court of Appeal, but only with leave.
[42] Weighed against the possible prejudice to appeal rights is the fact that Mr. Leandro must incur the costs of and delay associated with appearing on another hearing before the Superior Court to argue a point that he was prepared to argue once and has now been argued. This prejudice is greater than the prejudice associated with possibly having to seek leave before being able to appeal this decision to the Court of Appeal. . Legault v. TD General Insurance Company
In Legault v. TD General Insurance Company (Ont CA, 2023) the Court of Appeal considers the appeal remedy of a new trial [under CJA 134(1)(b)]:[6] The respondent rightly asserts that the high threshold for ordering a new trial in a civil action, as required by s. 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and affirmed by this court on many occasions, permits a new trial to be ordered only where an error amounts to a substantial wrong or miscarriage of justice, or where the interests of justice plainly require so. See Girao v. Cunningham, 2020 ONCA 260, at para. 7; Brochu v. Pond (2002), 2002 CanLII 20883 (ON CA), 62 O.R. (3d) 722 (C.A.), at para. 68; and Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342, at para. 7. . 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:[114] 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:a) The terms of this proposal must be provided in writing to those involved in managing the defence;
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. 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. . Bruno v. Dacosta
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
[20] 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.
[21] 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?
[22] 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).[1] 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.
[23] 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, [2008] 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, [2007] 3 S.C.R. 129, at para. 101.
[24] 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.”
[25] 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
[26] 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.”
[27] 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
[28] 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, [2013] 2 SCR 639, at para. 11, and Dinardo, at para. 26.
[29] 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
[30] 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. . Earl v. McAllister
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:[52] 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), [1995] 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):[38] 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), [1995] 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?
[20] Rule 37.13(2)(a) states:A judge who hears a motion may,
(a) in a proper case, order that the motion be converted into a motion for judgment; [21] 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.
[22] 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. [23] 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. [4]
[24] 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.
[25] 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.
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