The Failure To Object In The Lower Court: Is It Fatal To Your Appeal?

• Published date: 26 June 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Torkin Manes LLP
• Author: Mr Marco P. Falco

For decades, the Ontario Court of Appeal has held that, as a general rule, it will not hear appeals from aspects of the lower Court proceeding to which the appellant failed to object.

The policy underlying this principle is that an appeal is not an opportunity to fix mistakes made by counsel in the lower Court; nor is it a chance for the appeal Court to re-hear the case de novo.

But if the error in the lower Court proceeding is significant, will an appeal Court refuse to entertain the error on the basis that counsel did not object to it?

A recent decision of the Ontario Court of Appeal, Parliament (Litigation guardian of) v. Conley, 2021 ONCA 261, suggests not.

A Battle of the Experts

Parliament involved a medical malpractice jury trial in which the plaintiff sued the defendant physicians for negligence relating to the failure to diagnose and treat the plaintiff's severe hydrocephalus, ultimately resulting in the plaintiff's brain damage.

One of the main issues at trial was the reliability and credibility of the witnesses. The question was whether the physicians had properly advised the plaintiff's mother of her son's condition and whether she had followed that advice.

One of the defence medical experts, an expert in family medicine, concluded that both defendant physicians had met the standard of care. In the course of his testimony and cross-examination at trial, the defence medical expert opined on the credibility of the plaintiff's mother, the plaintiff, and the defendant physicians.

Plaintiff's counsel did not object to the admissibility of the defence expert's testimony during the course of his testimony or cross-examination.

In the end, the jury found that both defendant physicians had met the standard of care; the action was dismissed.

On appeal, plaintiff's counsel took the position that a new trial was required because the defence medical expert gave evidence beyond his expertise, failed to provide impartial testimony, and gave testimony on key issues of credibility, thereby usurping the jury's role.

The Court of Appeal reversed the jury verdict and ordered a new trial.

The Court held that the trial judge erred in failing to instruct the jury that it ought not to consider the defence medical expert's testimony on the credibility and reliability of the parties.

Given that credibility was a key issue in the case, the only standard-of-care witness for the defendant physicians exceeded his role by opining on the witnesses' credibility.

In the...