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Appeals - Statutory Fresh Evidence Assessment [CJA 134(4)(b)]

I noticed this evidentiary 'powers on appeal' authority [under CJA 134(4)] being used twice (GlaxoSmithKline and Crosslinx) in a manner that was much more than 'fresh evidence'. The Court of Appeal characterized it as a 'fresh assessment', and as exercising 'remedial fact-finding powers' [GlaxoSmithKline paras. 128-129]. It's use was largely tied to the proportionality principles in summary judgment doctrine and R1.04(1.1). It bears watching.

. Carmichael v. GlaxoSmithKline Inc.

In Carmichael v. GlaxoSmithKline Inc. (Ont CA, 2020) the Court of Appeal focussed on CJA 134(4) to make a 'fresh assessment' of the evidence on a summary judgment hearing under it's 'powers on appeal' jurisdiction:
[128] GSK asks this court to exercise remedial fact-finding powers on appeal. It says the court should make a fresh assessment of the evidence; it should find that Mr. Carmichael did not prove that he was incapable of commencing his claim against GSK because of his psychological condition before the Board granted him an absolute discharge; and it should grant summary judgment dismissing the action as statute-barred.

[129] This court has the statutory jurisdiction to grant this relief. Once a reviewable error has been found, the court has the power to make a fresh assessment of the evidence and to make any order or decision that ought to or could have been made from the court appealed from, to order a new trial, or to make any other order or decision that this court considers just: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(1). This court may also draw inferences of fact from the evidence, where such an inference would not be inconsistent with a finding that has not been set aside: s. 134(4) (a).

[130] Despite having such authority, appellate courts are cautious about exercising fact-finding powers. Appellate courts will not make findings of fact if this requires the court to assess credibility or if the evidentiary basis needed to draw the necessary inferences is inadequately developed in the record at first instance: see Pucci v. Wawanesa Mutual Insurance Co., [2020] O.J. No. 1758, 2020 ONCA 265 (C.A.), at para. 61; C. (A.), at paras. 79-80, 82.

[131] At the same time, the Supreme Court of Canada's decision in Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, at para. 2, per Karakatsanis J., called for a "culture shift" in courts deciding summary judgment motions "in order to create an environment promoting timely and affordable access to the civil justice system". Moreover, as Brown J.A. has noted, because "the [page642] court's comments [at para. 2 of Hryniak] apply equally to civil appellate courts", this court's exercise of its powers under s. 134 must also strive to promote "timely and affordable access to the civil justice system": C. (A.), at para. 78.

[132] Thus, when an appellate court can find no genuine issue requiring a trial and can reach a fair and just determination of the merits of a motion for summary judgment through an appropriate exercise of its fact-finding powers under s. 134, it should do so. As the Supreme Court stated in Hryniak, when speaking of courts of first instance, "[t]his will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result": at para. 49. These comments apply equally to the exercise of fact-finding powers by a reviewing appellate court: see C. (A.), at para. 81.

[133] Moreover, in appropriate cases, appellate fact-finding can promote important values of the civil justice system. As Doherty J.A. stated in Pucci, at para. 62:
Appellate fact-finding can . . . promote finality and efficiency in the civil justice process. In civil proceedings, appellate courts should avoid ordering a new trial if, in light of the nature of the factual issues, and the state of the trial record, the appellate court can confidently make the necessary factual findings without working any unfairness to either party: [C. (A.)], at para[s]. 78-80.
[134] Based on all the circumstances, I have concluded that this is an appropriate case for this court to exercise its fact-finding powers under s. 134.

[135] I reach this conclusion for five reasons:
(1) The appeal does not raise questions of credibility, but rather depends crucially on the court's appreciation of the expert evidence: see Bryars Estate v. Toronto General Hospital, 1997 CanLII 2381 (ON CA), [1997] O.J. No. 3727, 152 D.L.R. (4th) 243 (C.A.), at para. 41;

(2) The record is complete for the purpose of deciding whether to grant summary judgment. The record includes affidavits, transcripts of cross-examinations and examinations for discovery, medical reports and other information that was before the Board;

(3) The parties do not materially dispute the facts; they dispute the legal significance of the facts, arising from a documentary record. This court is therefore as well placed as the motion judge to decide the issues;

(4) Neither party asked this court to remand the matter to the Superior Court for redetermination if it set aside the motion judge's order; and [page643]

(5) The tragic events of this case occurred almost 16 years ago and have now been before the courts for almost a decade. This gives particular poignancy to Hryniak's admonition, that the "[p]rompt judicial resolution of legal disputes allows individuals to get on with their lives": at para. 25.
[136] I now turn to make a fresh assessment of the evidence and to consider the order that the court below should have made.
. Crosslinx Transit Solutions General Partnership v. Ontario (Economic Development, Employment and Infrastructure)

In Crosslinx Transit Solutions General Partnership v. Ontario (Economic Development, Employment and Infrastructure) (Ont CA, 2022) the Court of Appeal considered the appeal court's authority regarding evidence:
[36] It is not appropriate for this court to engage in the kind of fact-finding process that would be required to determine these issues. As this court recently observed in Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at paras. 129-132, leave to appeal refused, [2020] S.C.C.A. No. 409, while appellate courts have fact-finding powers and the power to make any decision that the judge at first instance could have made under ss. 134(1) and (4) of the Courts of Justice Act, R.S.O. 1990, c. C.43, they are cautious about exercising them. Appellate courts will not make findings of fact if this requires the court to assess credibility, the evidentiary basis needed to draw the necessary inferences is inadequately developed in the record, or where the court cannot reach a fair and just determination of the merits.



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