by Written on behalf of Wise Health Law September 13, 2019 3 min read

Introduction

After a litigation loss, the usual client question that follows is “can we appeal?” No one involved in a court battle wants, or likes, to lose. When they do they have a natural need to know why. The "why" is supposed to come from the reasons provided for the decision. Beyond disagreeing with the judicial assessment generally, do the reasons supply the grounds for an appeal?

The Leading Case

The Supreme Court of Canada (SCC) was called on to assess the adequacy of judicial reasons in the criminal case of R. v. R.E.M. (2008). There, the accused was charged with multiple counts of sexual assault. The evidence was largely a contest between the complainant and the accused. The complainant, years after the events, testified about the assaults which she asserted were not consensual and occurred both before and after she reached the age of consent which was at the time fourteen years of age. The accused maintained that the acts were both consensual and that they did not begin until the complainant was fifteen. The accused was convicted and appealed based on the insufficiency of the trial judge's reasons. The Ontario Court of Appeal (ONCA) agreed and allowed the appeal. The crown then appealed to the SCC which restored the conviction.

The SCC stated that a trial judge's reasons served three main functions:

  1. To explain the decision to the parties;
  2. To provide public accountability; and
  3. To permit effective appellate review.

With respect to an appeal, the SCC described the responsibility of the appellate court as follows:

Proceeding with deference, the appellate court is to ensure that, read in the context of the record as a whole, the trial judge’s reasons demonstrate that he or she was alive to and resolved the central issues before the court...

...he question is whether the reasons, considered in the context of the record and the live issues at trial, failed to disclose a logical connection between the evidence and the verdict sufficient to permit meaningful appeal.

In the case at hand, the SCC found that the central issue for the trial judge to consider was the credibility of the parties. After considering the totality of the evidence, the trial judge was not left with any reasonable doubt as to the guilt of the accused. The ONCA then chose to approach the review of the trial decision from a skeptical standpoint. The ONCA focused on omitted details rather than the entirety of the judge's reasons.

The SCC further explained the fundamental basis of sound judicial reasons:

What is required is a logical connection between the “what” – the verdict – and the “why” – the basis for the verdict. The foundations of the judge’s decision must be discernible when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

The Takeaway

Appeals are expensive and extremely time-consuming. When considering an appeal, it's important to ensure that there is sufficient reason to believe that success is possible. A skilled lawyer will provide an opinion on whether the lower court reasoning provides a basis on which to form an appeal, such as a clear mistake of fact or mistake of law. Simple disagreement with the judge's findings will not be enough.

At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in medical malpractice claims. To find out more about how we can help, contact us online, or at 416-915-4234to schedule a consultation.



Also in Blog

Pandemic Exemptions for CPSO Registration

by Mina Karabit March 11, 2021 3 min read

It is no surprise that the COVID-19 pandemic continues to affect the delivery of health services and the regulation of various health professions.

In a welcomed move, the College of Physicians and Surgeons of Ontario (CPSO) Council recently approved a new registration policy allowing the Registration Committee to issue a Certificate of Registration authorizing Independent Practice to applicants who have not completed Part II of the Medical Council of Canada Qualifying Examination (MCCQE).

Supreme Court of Canada Confirms Test for Standard of Care

by Rozmin Mediratta February 08, 2021 4 min read

The test for the standard of care in medical negligence cases has remained untouched since the Supreme Court of Canada’s 1995 decision in ter Neuzen v. Korn.

On January 18, 2021, the Supreme Court of Canada heard the appeal in Armstrong v. Ward. Their unanimous decision maintains the status quo with respect to the standard of care in medical negligence cases.

Expanding the Pharmaceutical Scope of Practice (Again)

by Mina Karabit January 19, 2021 2 min read

Like other professionals, pharmacists have been adjusting to an expanded scope of practice as all health professionals work to combat the COVID-19 pandemic. We wrote about some of these changes in our previous blog posts.

Last week, the Minister of Health made additional changes to the Regulated Health Professions Act relevant to pharmacy professionals. Now, members of the Ontario College of Pharmacists — including pharmacists, interns, registered pharmacy students, or pharmacy technicians — can administer coronavirus vaccines by injection. These individuals must be certified to administer vaccines and must do so while being engaged by an organization that has an agreement with the Minister governing the administration of the vaccine (e.g., a hospital).