Appeals - Remedies on Summary Judgment Appeals. Carmichael v. GlaxoSmithKline Inc.
In Carmichael v. GlaxoSmithKline Inc. (Ont CA, 2020) the Court of Appeal considers 'proportionate' CJA s.134(1)(a) appeal remedy and evidence powers for summary judgment appeals:
Powers on appealThe court states:
134 (1) Unless otherwise provided, a court to which an appeal is taken may,
(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;
(4) Should this court make a fresh assessment of the evidence and substitute the decision that should have been made?
 The question then arises: what relief should be ordered?
 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.
 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).
 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. The Wawanesa Mutual Insurance Company, 2020 ONCA 265, at para. 61; Cook, at paras. 79-80, 82.
 At the same time, the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7,  1 S.C.R. 87, 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 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”: Cook, at para. 78.
 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 Cook, at para. 81.
 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: Cook, at para[s]. 78-80. 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.
 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), 1997 CanLII 2381 (ON CA), 152 D.L.R. (4th) 243 (Ont. 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
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.