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Appeals - New Trial. Shannon v Selim
In Shannon v Selim (Div Court, 2024) the Ontario Divisional Court considered the CJA s.134(6) 'new hearing' provision:[9] But, even if the Board erred in setting the rent too low, the landlord does not complain and remains prepared to accept the amount set out in the lease. There is no basis for this error to change the outcome of the decision. If anything, the landlord has been deprived of his right to claim the actual, higher rent and he is content with this outcome. This is a case therefore, where, even if there was an error, there was no substantial wrong or miscarriage of justice. In such circumstances, the court is precluded from ordering a new hearing under s. 134 (6) of the Courts of Justice Act, RSO 1990 c C.43. . Jarvis v. Oliveira [jury trial]
In Jarvis v. Oliveira (Ont CA, 2024) the Ontario Court of Appeal allowed a negligence appeal "from a civil jury trial concerning a collision between a motorist and a young pedestrian" - where a central issue was the degree of the plaintiff's fault, the trial court denying liability entirely.
In these quotes the court canvasses the Ontario law of new trials as an appeal remedy - here in an appeal from a civil jury verdict:[48] The appellants submit that the jury’s verdict should be set aside because the manner in which the taxi fare evidence was handled resulted in an unfair trial. Consequently, they request that we order a new trial.
[49] Section 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 sets out the powers of an appellate court in civil cases. An appellate court may order a new trial (s. 134(1)(b)), but only where “some substantial wrong or miscarriage of justice has occurred” (s. 134(6)). As this court held in Landolfi v. Fargione (2006), 2006 CanLII 9692 (ON CA), 79 O.R. (3d) 767 (C.A.), this power extends to appeals from jury verdicts. Cronk J.A. wrote, at para. 121:Under s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), this court may only direct a new trial in a civil case if a substantial wrong or miscarriage of justice has occurred. This authority may only be exercised where the interests of justice plainly require a new trial: see Arland and Arland v. Taylor, 1955 CanLII 145 (ON CA), [1955] O.R. 131 (C.A.); and Brochu, supra. The concept of “miscarriage of justice” under s. 134(6) of the CJA extends to situations where the jury in a civil case may have been influenced by irregularities in the conduct of the trial: see de Araujo, supra, at para. 69. [Emphasis added.] See also Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 9; Willick v. Willick, 2023 ONCA 792, at para. 59; Bruno v. Dacosta, 2020 ONCA 602, 69 C.C.L.T. (4th) 171, at para. 20; and Nemchin v. Green, 2019 ONCA 634, 147 O.R. (3d) 529, at para. 71.
[50] I acknowledge that, on appeal, great deference must be afforded to a jury’s verdict in a civil trial: Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146, at paras. 32-36. However, civil jury verdicts are not impervious to review. As a matter of first principles, a jury’s verdict must be the product of a fair trial.
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