Tuesday, July 24, 2012

Failure to object to charge in civil context

Vokes Estate v. Palmer, 2012 ONCA 510 is a useful reminder that it is essential, for appeal purposes, to put objections to a jury charge in civil matters on the record:

[6]          We disagree. First, we note that trial counsel for the appellant did not object to these changes in the language of the draft jury charge when the trial judge said he intended to make them. Moreover, at the conclusion of the trial judge's charge, which included the modified language, trial counsel for the appellant not only again failed to object but also went further and described the jury charge as "an exercise in perfection."

[7]          While a failure to object is not always fatal in a civil jury trial, "an appellate court is entitled to give it considerable weight": Marshall v. Watson Wyatt & Co. (2002), 57 O.R. (3d) 813, 209 D.L.R. (4th) 411 (C.A.). In the absence of an objection at trial, in most instances, an alleged misdirection or non-direction will not result in a new trial in a civil case unless the appellant can show that a substantial wrong or miscarriage of justice has occurred: Pietkiewicz v. Sault Ste. Marie District Roman Catholic Separate School Board (2004), 71 O.R. (3d) 803 (C.A.) at paras. 22-28.


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