REVIEW OF CIVIL APPEALS BY THE HON. JOHN W. MORDEN

CIVIL APPEALS Book Review by The Hon. John W. Morden

This book is remarkable for its breadth and depth. Its subject is the law relating to civil appeals in Canada. It is published in loose-leaf form and at present has 959 pages. Its author, Donald J. M. Brown, Q.C., is the co-author of two other texts well known to Canadian lawyers, Brown & Beattie, Canadian Labour Arbitration, and Brown & Evans, Judicial Review of Administrative Action in Canada.

The breadth of the book's coverage is indicated by the titles of its parts and chapters. Chapter 1 is a valuable overview of what follows in the remaining 15 chapters. Part I, entitled "Jurisdiction of Appellate Courts in Canada", begins with chapter 2 which details the appellate jurisdiction of the Supreme Court of Canada, the Federal Court of Appeal, and the Federal Court, and the various appellate courts in the ten provinces and three territories. One of the benefits of this comprehensive treatment is the facilitation of submissions on the proper interpretation of a provision based on a comparative analysis of similar provisions in different jurisdictions.

Part II covers "Appellate Procedures", again with specific references to the law in different jurisdictions. Part III, entitled "Ensuring Due Process", contains innovative material for a text on appeals. It covers bias and lack of independence, supervision of the conduct of the trial, and appellate review of the decision-making process, which stands in contrast to review for error on the merits and is dealt with in Part IV, entitled "Appellate Review for Error on the Merits", and covers standards of appellate review in different contexts.

The depth of the book is exemplified in the overview in chapter 1 and in several following chapters which build on themes and concepts introduced in chapter 1. In chapter 1 the author states the three functions of appellate courts:

"First, they supervise the workings of trials and, where provided by legislation, of other adjudicative decision-makers to ensure due process. Second, they correct substantive errors by the initial adjudicator. And third, appellate courts carry primary responsibility for the development of the common law and other jurisprudence within their jurisdiction."

An appeal is generally a review of the lower court decision for error. That is, it is not a de novo hearing. Accordingly, the concept of error, which, in different forms and ways, relates to the three functions of appellate courts, runs through the law relating to appeals, and the author deals with its various manifestations throughout the balance of the book.

The setting in which the examination for error takes place is "the traditional model of adjudication". The defining characteristics of "the adjudicative decision-making process" are the adversary process, a pre-existing norm, a neutral decision-maker, communication of proofs and argument, and reasoned decisions. The principles underlying these characteristics, when infringed, can give rise to a wide range of process errors, which are described in chapter 1 and in chapter 13.

After describing process errors, chapter 1 describes substantive (merits) errors. They are errors of fact, of law, and of mixed questions of fact and law. These are familiar to lawyers in the context of standards of appellate review which are "applicable to determine whether substantive error exists in relation to the findings of fact, declarations of law, and conclusions reached in applying the law to the facts as found [generally referred to as a question of mixed fact and law]." These are covered in Part IV, which includes useful descriptions of the many issues that can arise in fact-finding and the case law relating to them as it then does with respect to the distinctive characteristics of law declaration. In several sections it gives wide ranging examples, based on the case law, of the different kinds of error of fact and of law.

Much of this analysis is relevant not only to the application of the appropriate standard of review at the time that judgment is given at the end of the appeal but also earlier in the appeal where it can be relevant to whether a right of appeal exists. For example, rights of appeal may be limited by statute to "a question of law", "a question that is not one of fact alone", and by like conditions (chapters 3 and 4).

Further, the scope of the remedial power of an appellate court, discussed in chapter 6, can turn on the nature of the error made by the trial court. With respect to jury trials, the basic common law rule is that questions of fact are for the jury and questions of law are for the judge. On an appeal, subject to a statutory provision to the contrary, questions of fact are still for the jury, such that if the appellate court decides that the verdict cannot stand because it is one that no jury acting judicially could have reached, it must order a new trial before judge and jury or, if the state of the evidence is such that only one conclusion can be drawn from it, the appellate court should substitute a decision in accordance with that one conclusion – and it can be in favour of plaintiff or defendant. (McNichol v. Ardiel (1978), 22 O.R. (2d) 324 (C.A.) at pp. 326-327, Oneil v. Metropolitan Toronto Police Force (2001), 195 D.L.R. (4th) 59 (Ont. C.A.) at paras. 90-93, 125-126 and Vigoren v. Nystuen (2006), 266 D.L.R. (4th) (Sask. C.A.) at para 32). In exercising this power the court is applying the law and not intruding into the realm of fact.

As indicated above, a statute may give an appellate court power to decide questions of fact. The author deals with this, possibly overstating the extent to which statutory powers that have altered the common law position with respect to jury cases. For example, there is a long tradition of appellate courts not to regard the appellate powers to "make any order or decision that ought to or could have been made" by the trial court as enabling them to enter into the realm of fact in jury cases. It would have been helpful if the author had probed more deeply into this admittedly difficult area.

It may be thought that, with all the wide ranging and detailed analyses of the fundamental legal concepts that bear on the kinds of error that are relevant to the different phases of the appeal process, this book is top-heavy with theory. This is not the case. The nature of the beast requires the treatment given to it by the author. There is nothing theoretical in the reasoning in the manifold number of decisions he has collected and carefully arranged into relevant and useful categories. To the extent that theory is involved, the observation made by Justice Oliver Wendell Holmes over a century ago is apposite: "[T]heory is not to be feared as impractical, for, to the competent, it simply means going to the bottom of the subject".

This book gets to the bottom of the subject of civil appeals. The resulting product will be of inestimable value to all readers looking for a better understanding of the appellate process and particularly to lawyers in selecting and formulating submissions to make on appeals and to appellate judges in the writing of their reasons for decision.

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Hon. John W. Morden
Counsel, Heenan Blaikie LLP
Published in The Advocates' Quarterly, August 2009