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Appeal-Judicial Review - Trial Management Powers. Rassouli-Rashti v. Tayefi
In Rassouli-Rashti v. Tayefi (Ont CA, 2023) the Court of Appeal considered an appeal against the lower court's exercise of it's 'trial management powers', here with an unrepresented party. This novel appellate issue (that of a 'trial management power', one apparently first raised by the appellate court) strikes me as an appellate sham. It avoids the substantial issues - which were whether the court fulfilled it's fairness duties to a presenting (ie. self-representing) party - by raising 'trial management' as a potential appellate issue. That is, the court made the issue that of whether the lower court's exercise of their 'trial management powers' was acceptable or not. As such, the Court of Appeal here opens the door to some unfairness being tolerable - outside the normal logic of appellate deference:(iii) The trial judge erred in his conduct of the trial and in his failure to ensure trial fairness for the appellant, a self-represented litigant, by: a) prohibiting the appellant from cross-examining Dr. Rassouli-Rashti on his professional discipline conviction for lying to his disciplinary regulator; and b) refusing to allow the appellant to refer to an outline while testifying.
[19] The appellant’s grounds here challenge the exercise of the trial judge’s trial management powers. Given their discretionary nature, absent error in principle or unreasonable exercise, deference is owed on appeal to trial management decisions: R. v. Samaniego, 2022 SCC 9, 466 D.L.R. (4th) 581, at paras. 25-26. However, erroneous evidentiary rulings and trial unfairness cannot be justified under trial management. No deference is owed to a trial management decision that amounts to an error in principle or an unreasonable exercise of discretion, or that otherwise renders a trial unfair: Katz v. Zentner, 2022 BCCA 371, at paras. 61-62, 76; R. v. Wesaquate, 2022 SKCA 101, 418 C.C.C. (3d) 225, at paras. 95-96; Ker v. Sidhu, 2023 BCCA 158, at paras. 80-84; Samaniego, at para. 26. Appellate review of trial management decisions requires a contextual approach; it is important to consider them in the context of the trial as a whole, rather than as isolated incidents: Samaniego, at para. 26.
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