Defending Your Damage Award On Appeal


This paper sets out some basic principles personal injury lawyers need to consider when they find themselves trying to uphold damage awards in an appellate court. Because the grounds upon which an appellate court may interfere with an assessment of damages are limited, this subject is narrow. Hence, this paper will be relatively brief. Much of it will be devoted to explaining just how limited appellate review is. Knowledge of those limits should assist you in identifying whether the arguments advanced by your opponent are permissible. Also, from time to time, appellate judges need gentle reminders of the fetters restraining their impulse to reach the "right" result as they might see it, if they had been the trial judge or on the jury. Sometimes, the reminders of these constraints delivered by the Supreme Court of Canada to the appellate courts of the provinces and territories are not so gentle: see Housen v. Nikolaisen1 and H.L.. v. Canada.2 Most of the time appellate judges are very mindful of the limits of appellate review and do not expect counsel to dwell on them at length. However, they do expect counsel to shape their arguments with those constraints in mind.

The Statutory Basis of Appellate Review

Appellate courts are creatures of statute.3 Although they review the decisions of superior courts, they do not possess the inherent jurisdiction enjoyed by a superior court of record. Consequently, in Ontario, one must look initially to the Courts of Justice Act4 to determine the ambit of the jurisdiction of both the Court of Appeal and the Divisional Court. This paper will not address the question of when an appeal lies to the Divisional Court, as opposed to the Court of Appeal; the answer to those jurisdictional questions can be readily found by reading ss. 6 and 19 of the Courts of Justice Act. The section of the statute which is most germane to this subject is s. 134, which defines the powers of both Court of Appeal and the Divisional Court when an appeal is properly before them. That section has several parts warranting discussion:

134.(1)Unless otherwise provided, a court to which an appeal is taken may,

make any order or decision that ought to or could have been made by the court or tribunal appealed from; order a new trial; make any other order or decision that is considered just. The above provision, which is broad, is circumscribed by s-s. 134 (4)(a):

(4) Unless otherwise provided, a court to which an appeal is taken may, in a proper case,

draw inferences of fact from the evidence, except that no inference shall be drawn that is inconsistent with a finding that has not been set aside; .,to enable the court to determine the appeal,... Section 134(4)(a) forces an appellate court-- and an appellant who seeks to persuade an appellate court to come to grips with the actual findings of a trial judge or jury, instead of emphasizing other facts in the record to come to a different conclusion. In other words, the provision suggests that appeals are to be reviews for error, not hearings de novo.5 As discussed below, considerable jurisprudence addresses the issue of when an appellate court may set aside a finding of fact made from an inference.

For the purposes of this subject, s-ss.134(6) and (7) of the Courts of Justice Act are also significant:

134(6) A court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred.

If a substantial wrong or miscarriage of justice affects only part of the judgment or only some of the parties, the appellate court may order a new trial in respect of only affected parties: a 134(7).

While s-ss. 134 (1) and (4) speak to what an appellate court may do with the conclusions of a judge or jury, ss-s.134 (6) and (7) speak to appellate scrutiny of the trial process. Not every error made in the conduct of a trial, such as misdirection or non-direction in the charge to the jury, the admission of inadmissible evidence, the exclusion of admissible evidence, or the striking or retention of a jury notice, necessarily justifies a new trial. To obtain a new trial, appellants must show more than the existence of error. Rather, they must also demonstrate a reasonably substantial possibility that the result would have been different if the error had not occurred.

In rare circumstances, an appellate court may also exercise its power under s. 134(1)(c) to decide a case even though a new trial would normally be ordered in similar circumstances. In Oneil v. Marks, Borins J. A. stated:

Generally speaking, as in this appeal, where there has been misdirection that satisfies the court that had the jury been properly directed it would not necessarily have reached the same verdict, a new trial is ordered. However, there is ample authority for the proposition that when an appellate court is satisfied that all the facts are before it, and they are such that only one verdict could be given by a properly instructed jury, acting reasonably and judicially, the court is not bound to order a new trial, but has the power, which it ought to exercise, to direct that judgment be entered notwithstanding the verdict of the jury.6

Section 134 of the Courts of Justice Act is not the only provision in that statute that speaks to the powers of an appellate court. Section 119, which was enacted in Bill 69 in 1989, provides that:

119. On an appeal from an award of damages for personal injury, the court may, if it considers it just, substitute its own assessment of the damages.

Previously, if an appellate court set aside a jury's assessment of damages, the case had to be sent back for re-assessment by another jury, unless the parties consented to substitution by the appellate court. Now, the court will generally make its own assessment if it considers that the record allows it to do so.

Jurisprudential Constraints on Appellate Review of a Trial Court's Conclusions

The scope of appellate intervention varies with the type of asserted error.

Errors of Law

If the appellant contends that the trial judge erred in law, the standard of review is "correctness." This standard is justified because the core function of appellate courts is to maintain legal consistency and ensure that the law develops in conformity with the demands of sound policy.7

Review for Factual Error

By contrast, the standard of review for factual findings is "palpable and overriding error," a phrase first used by the Supreme Court of Canada in 1976.8 Since the term is disjunctive, it is necessary to discuss the meaning of "palpable" separately from the meaning of "overriding."9

A finding of fact can only be set aside if it is "palpably" wrong. This means that the appellate court must be able to "plainly identify" the flaw in the finding to show that it is "clearly" wrong and "unreasonable". To employ a metaphor, one must be able to "put one's finger" on the error and be able to explain why it is error. In Waxman v. Waxman, the leading Ontario decision in the past decade on the standard of appellate review, Doherty J.A. explains: "After Housen, appellate courts will not review findings of fact... by asking whether on the totality of the record, those findings are reasonable.''10 In H.L. v. Canada, Fish J. stressed that an appellate court may not re-weigh evidence to arrive at a finding of fact that it believes is more reasonable than a fact reasonably found by a trial judge.11

The "palpability" standard applies to both findings of "primary fact" and findings of fact that are arrived at through inference. A finding of primary fact (or "evidential fact") is one whose existence is attested to directly by a witness or an exhibit. Fact-finding, however, almost always involves drawing inferences from evidence and other factual findings. Inferences require...

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