Simon's Megalomaniacal Legal Resources

Appeals - New Trial

. Adewale v. Royal College of Physicians and Surgeons of Canada

In Adewale v. Royal College of Physicians and Surgeons of Canada (Ont CA, 2025) the Ontario Court of Appeal allowed a plaintiff's appeal, here brought against "the dismissal of their action for breach of contract" where "they sought a declaration that they each obtained a passing grade of at least 70% on a qualifying exam administered by the Royal College of Physicians and Surgeons of Canada (the “Royal College”) in 2020 and were therefore entitled to be certified for independent psychiatric practice".

Here the court, while allowing the appeal, considered the remedy of remitting the case back down for a new hearing:

A New Trial Is Required

[48] Section 134(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that an appeal court may: “(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from; (b) order a new trial; (c) make any other order or decision that is considered just.” Section 134(6) provides that “[a] court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred.”

[49] As stated in Champoux, at para. 19:

When reasons do not fulfill one or more of their functions, it may be necessary for the appellate court to send the matter back to the court below for a new hearing. This is hardly a desirable result, given the wasted costs of the first hearing and the delay in having the case determined on the merits. Yet sometimes, this rather drastic result is necessary to protect the judicial system’s integrity. [Citations omitted.]

[50] And, as this court observed more recently: “Where the reasons are deficient in explaining the result to the parties, and the appeal court does not consider itself able to do so, a new trial may be needed. This is a case-specific assessment”: Willick v. Willard, 2023 ONCA 792, 492 D.L.R. (4th) 109, at para. 59. In Earl v. McAllister, 2021 ONSC 4050 (Div. Ct.), 156 O.R. (3d) 209, at para. 52, cited with approval in 778938 Ontario Limited v. EllisDon Corporation, 2023 ONCA 182, 479 D.L.R. (4th) 653, at para. 11, the Divisional Court noted:

Section 134(1)(a) of the Courts of Justice Act, empowers an appellate court to make an order or decision that ought to or could have been made by the court or tribunal appeared from. Although, more typically, when an appellate court determines that an error had a bearing on the outcome of a lower court’s decision, the matter is remitted to that court for determination, in circumstances where the appellate court has a complete record, the final resolution of the dispute has already been delayed, and there is no special advantage in remitting the matter back to the court in first instance, it will be appropriate for the appellate court to finally determine the issues between the parties. [Citations omitted.]

[51] It is not appropriate for this court to retry the issues in dispute in this action based on the existing record. This was not a long trial. It is not in the interests of justice for this court to make the determinations that are required – the underlying issues for trial are both legally and factually complex and were of necessity canvassed only briefly in this appeal. Essentially, what the parties are seeking is a rehearing on a paper record, with this court stepping into the shoes of a trial court. That is not our function.

[52] An additional relevant factor is the importance of this claim to the appellants. They spent years studying, training, and working with the goal of practicing independently as psychiatrists in Canada. They obtained medical degrees in approved jurisdictions and attestations from their supervisors that they had the knowledge, competence, skills, training and personal qualities to engage in such practice. The only additional hurdle was the Royal College’s qualifying exam. Given the impact the Royal College’s decision that they had not passed the exam would inevitably have on their lives and careers, the appellants are entitled to a reasoned decision by a trial judge on the expert evidence, as well as the other issues, after full consideration of the parties’ written and oral arguments.

. 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.