Written by Randolph Scott
When a judgment feels unfair: common reactions after trial
There is probably not a courtroom lawyer in the world who hasn’t heard an unhappy client demand an appeal after hearing a judge rule against them. And of course, such a response is to be expected: not only is the losing party upset and disappointed that a court ruled against them, he or she may remain convinced of the certainty of their cause and that somehow “that stupid judge” got it completely wrong in ruling for the other side.
What qualifies as grounds for an appeal in Canada?
And sometimes a judge does get it wrong. But it is important to note that merely disagreeing with a judge’s final decision is not enough; there must be more. Did the court miss a key fact, misapprehend or misunderstand key facts, display faulty reasoning in reaching conclusions, misapply the law to the facts or apply the wrong law? Was there clear bias against one party or the other? Was there a procedural error that could conceivably have affected the outcome?
To address these questions and remedy possible errors, the Canadian justice system provides courts of appeal. Appellate courts are there to provide a means where a court decision can be reviewed to ensure that any errors in procedure, in reasoning or in the application of the law are corrected.
And, in reviewing a legal matter, the appellate court must also determine an appropriate “standard of review” to determine whether an appeal should be granted. Standards of review vary dependant on the nature of the error itself, whether it is an error in fact or in law or in a combination of the two.
Where an error is deemed to be factual, should that error have to be overtly egregious or can it be something lesser?
And where errors in law are alleged, how should an appellate court review whether the law was correctly applied? Did the trial judge misapply the law or rely on the wrong law? And where there was found to be a procedural error – did it significantly affect the outcome or was it of a more minor nature that likely would have not had much impact? And further, by what standard should these errors be reviewed?
Appeals are not retrials: deference to trial judges
In light of the foregoing it is important to note that an appeal is not a rehearing of the trial. It is a means by which an appellant has an opportunity to show the appellate court that there was a judicial error and that the error was such that a wrong conclusion was reached that resulted in an unjust outcome.
It is also vitally important to note that appellate courts will demonstrate great deference to the trial judge. That judge was in the courtroom, heard firsthand the testimony, saw first firsthand the evidence, saw the behaviour and body language of the litigants and thusly could more easily ascribe credibility to one over the other and could better ascertain the relevant facts of the case.
What appellate courts can do with a case
In considering the merits of an appeal, the appellate court (whether at the Court of King’s Bench or the Court of Appeal) has a number of options: it can dismiss the appeal, it can grant the appeal and order a matter back for re-trial or it can remedy the error, replacing the trial judge’s finding with its own. But this often relies on the nature of the error itself and thusly a complete analysis must be performed by the appeal court.
The Supreme Court of Canada has reviewed appeals extensively and has provided a thorough examination of the grounds for appeal as well as the standard by which those grounds should reviewed by an appellate court. In the matter of Housen v. Nikolaisen 2002 SCC 33 CanLII [2002] 2 SCR 235, the Supreme Court of Canada (SCC) detailed the grounds of appeal as well as the standard of review that sets the legal framework upon which appeals are to be reviewed. Failure to do so would result in the appeal court creating an error of its own.
Background: Housen v. Nikolaisen case facts
Housen and Nikolaisen were litigants in a matter involving a motor vehicle accident where Housen was a passenger in a vehicle operated by Nikolaisen. Housen was rendered a quadriplegic as a result of the accident and sued Nikolaisen and the municipality that maintained the roadway upon which the accident occurred.
At trial, the judge found that Housen himself was 15 per cent responsible for the injuries as a result of drinking for several hours with Nikolaisen prior to the accident and failing to take reasonable precautions as a result. The Court found Nikolaisen 50% responsible and the municipality responsible for the remaining 35%. The court found the municipality negligent in failing to post signs on the roadway despite 3 previous accidents just east of the Nikolaisen accident site.
The municipality appealed this decision and the Court of Appeal found that the municipality had not acted negligently. Housen appealed this decision which went to the Supreme Court.
In reinstating the trial judge’s finding that the municipality was indeed negligent, the SCC (in a 5-4 decision) examined the standards of review that arise on appeals of lower court decisions.
The SCC firstly noted that, as stated above, an appeal is NOT a retrial of a matter. It is, rather, an examination of a trial judge’s decision and whether that decision is correct on matters of fact, matters of law or a combination of the two – matters of mixed fact and law.
Standard of Review on Findings of Fact
The SCC noted that great deference is given to the trial judge who firsthand heard the testimony and reviewed the evidence. Given this deference, an appellate court cannot reverse findings of fact unless the trial judge has made a “palpable and overriding error” -- that is, an error so clear on its face that the judge misunderstood, misapprehended or ignored a key fact in reaching a decision. Minor errors or errors not pertinent to the issues are NOT considered palpable and overriding error. Simply put, there may be an error, even a readily apparent error but it would fail the test if it is not palpable AND overriding -- one that leads to a significant misapprehension of facts that in turn lead to a wrong decision.
As well, inferences of fact arising from findings of fact (that is, a factual conclusion based on factual findings) must be deferred to by an appellate court unless a palpable and overriding error can be demonstrated. If there is no such error with respect to the underlying facts, a factual inference itself must be demonstrated to be palpably wrong before an appellate court can interfere with the lower court’s findings.
Standard of Review on Questions of Law
Questions of Law, that is appeals on a trial judge’s interpretation or application of the law are reviewed on a standard of correctness. Did the trial judge correctly apply the relevant law and was it, in turn, correctly applied? Did the court apply law that was outside its jurisdiction (that is, did a lower court apply law that by right is only under the jurisdiction of a higher court)?
In matters on questions of law, an appellate court can, under the standard of review of correctness, replace the lower court’s decision with its own, thus correcting the legal error.
Standard of Review for Questions of Mixed Fact and Law
As noted in Housen v. Nikolaisen, “it is important to distinguish questions of mixed fact and law from factual findings (whether direct findings or inferences)”. Such questions involve applying a legal standard to a set of facts. By way of example, where a court finds a person negligent in doing A and B, the legal standard of negligence (a question of law) was arrived at by the defendant doing A and then B (findings of fact).
As a result, the SCC urges an appellate court to carefully examine a matter before assigning a standard of review – given the differing standards (correctness or palpable and overriding error), a reviewing court must use caution in making this determination. Where an error is ultimately deemed to be an error of pure law, then correctness is the standard and the error can be remedied immediately by the appellate court.
Where it is determined to be a mixed error of law and fact, the more stringent standard (palpable and overriding error) is applied. But even here the SCC notes errors of mixed fact and law usually “fall upon a spectrum of particularity.” Some matters are so unusual, so unique that no general principle of law can be derived from them and a decision based on the facts before the lower court will be the appellate standard – that of palpable and overriding error.
So, given an appellate court’s deference to the lower court’s findings of fact, questions of mixed fact and law will often involve an “intertwining” where drawing inferences on fact rises to a legal standard or not. Both processes relate to the evidence before the trial judge and the SCC notes that, in such cases, appellate courts must then show considerable deference to the judge’s inference of both mixed fact and law.
The SCC expresses concern of an appellate court attempting “to extricate a purely legal question from what appears to be a question of mixed fact and law”. This concern stems from an appeals court assigning itself a correctness standard and thusly immediately remedying the error. The SCC made it clear inferences of mixed fact and law by the trial judge “support showing deference.”
The difficulty of alleging judicial bias
Lastly, it is not rare that a losing litigant will allege bias – “that judge never liked me and ruled against me”. Bias is perhaps the most difficult basis upon which to appeal and it should be expected that a higher court will give such allegations short shrift. Bias must be so readily apparent on its face and, given the appellant courts’ deference to the trial judge, they are loathe to consider or give credence to a bias allegation. A judge may be rude, dismissive or impatient with a party but this does not indicate bias in reaching a decision or even a desire to somehow punish the recipient party. A reviewing court would likely ask the appellant to demonstrate how bias manifested itself in the court’s reasoning or findings of fact, thus moving the issue back to the errors noted in the foregoing.
It can often be hard for a losing litigant to stand back from the matter and assess as a third party, coldly and objectively. Were there errors, were they “palpable and overriding”? Was the law correctly applied? Were inferences arising from the facts reasonable? Was the application of the law based on these factual inferences in fact correct? Such questions must be asked before an appeal is commenced.
Why appeals matter in a changing legal landscape
But it must be remembered that appeals are extremely important in our judicial system and our society. It is often the appeal courts that move the law along with the times, that examine long standing precedents and find them wanting or no longer relevant to society as it is today. As technology and social mores move, the law must move as well and will usually do so incrementally and slightly behind the times, often playing catch up in a time where everything moves with increasing speed.
Appeals can be hard to advance but our society relies on them to prevent our legislatures and our courts from becoming inert and immovable in an exponentially changing world.