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 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:
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.
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.
Earlier this year, Wise Health Law succeeded on a motion for summary judgment in a dental malpractice case on the basis that the limitation period had expired before the Statement of Claim was issued. The (unreported) decision was delivered orally on the day of the motion.
In part, the plaintiff argued that she did not discover her claim until the Royal College of Dental Surgeons of Ontario (the “RCDSO” or “College”) rendered its decision, as she did not know if the defendant was negligent when she complained to the RCDSO, but merely had a “suspicion”.
In the midst of COVID-19, the proceedings of many health colleges, and consequently of the health professionals they regulate, have been in limbo while everyone finds a way forward.
On March 25, 2020, the Ontario government enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (the “Act”) to help the process along.
The Act empowers statutory tribunals with more discretion over how proceedings before them are held.
Effective 11:59 p.m. on March 24, 2020, the Ontario government ordered the closure of “non-essential” workplaces. The list of “essential” workplaces included “health care professionals providing emergency care including dentists, optometrists and physiotherapists”.
The College of Chiropractors of Ontario (“CCO”) interprets this list as including chiropractors, and we agree.
So the question becomes – what is “emergency care”?