The Failure to Object in the Lower Court: Is it Fatal to Your Appeal?


For decades, the Ontario Court of Appeal has held that, as a general rule, it will not hear appeals from aspects of the lower Court proceeding to which the appellant failed to object.  

The policy underlying this principle is that an appeal is not an opportunity to fix mistakes made by counsel in the lower Court;  nor is it a chance for the appeal Court to re-hear the case de novo.

But if the error in the lower Court proceeding is significant, will an appeal Court refuse to entertain the error on the basis that counsel did not object to it?  

A recent decision of the Ontario Court of Appeal, Parliament (Litigation guardian of) v. Conley, 2021 ONCA 261, suggests not.

A Battle of the Experts

Parliament involved a medical malpractice jury trial in which the plaintiff sued the defendant physicians for negligence relating to the failure to diagnose and treat the plaintiff’s severe hydrocephalus, ultimately resulting in the plaintiff’s brain damage.

One of the main issues at trial was the reliability and credibility of the witnesses. The question was whether the physicians had properly advised the plaintiff’s mother of her son’s condition and whether she had followed that advice.

One of the defence medical experts, an expert in family medicine, concluded that both defendant physicians had met the standard of care. In the course of his testimony and cross-examination at trial, the defence medical expert opined on the credibility of the plaintiff’s mother, the plaintiff, and the defendant physicians.  

Plaintiff’s counsel did not object to the admissibility of the defence expert’s testimony during the course of his testimony or cross-examination.

In the end, the jury found that both defendant physicians had met the standard of care; the action was dismissed.

On appeal, plaintiff’s counsel took the position that a new trial was required because the defence medical expert gave evidence beyond his expertise, failed to provide impartial testimony, and gave testimony on key issues of credibility, thereby usurping the jury’s role.

The Court of Appeal reversed the jury verdict and ordered a new trial.

The Court held that the trial judge erred in failing to instruct the jury that it ought not to consider the defence medical expert’s testimony on the credibility and reliability of the parties.  

Given that credibility was a key issue in the case, the only standard-of-care witness for the defendant physicians exceeded his role by opining on the witnesses’ credibility. 

In the Court of Appeal’s view, this tainted the jury’s verdict and a new trial was required.

The Failure to Object to Evidence at Trial

The Court of Appeal provided a thorough analysis of the case law governing a failure to object at trial and its effect on the appeal.

Broadly speaking, a party is not allowed to appeal an aspect of the lower Court matter to which it did not object:  citing Marshall v. Watson (2002) 209 D.L.R. (4th) 411;  Maurice v. Alles, 2016 ONCA 287.

The failure to object at trial is usually fatal to an appeal. This is largely because, in the Court’s view, the failure to object suggests that the party did not consider the issue to be of sufficient importance in the lower Court proceeding. Accordingly, any effort on appeal to argue that the issue was of key importance is disingenuous.

The principle above also applies to an appellant’s failure at trial to object to a jury charge or a jury instruction:  Peitkiewicz v. Sault Ste. Marie Catholic Board, 2004 CanLII 874. It further applies to a failure to object to the admissibility of evidence in the lower Court proceeding: citing Hoang v. Vincentini, 2016 ONCA 723.

However, the rule is not absolute. 

It is subject to the Court’s discretion and the exception that an appeal Court has a broad power to order a new trial where to do so is in the interests of justice. 

The test is whether, despite the failure to object at trial, a “substantial wrong” or “miscarriage of justice” has taken place.

In this case, the defence medical expert’s evidence was admitted at trial on consent. The appellant’s counsel generally did not object to the expert’s evidence in chief. The appellant’s counsel also did not object to the trial judge’s jury charge, in which no reference was made to the expert’s bias and credibility opinions.

Despite these failures, the Court of Appeal held that the failure to object by appellant’s counsel at trial was not fatal. To allow the jury verdict to stand would amount to a substantial wrong or miscarriage of justice:

…Given the centrality of credibility in this case and the absence of any caution about [the expert’s] evidence…there is a very real possibility that [the expert’s] evidence on credibility and reliability played a significant role in the jury’s decision to find that the standard of care was met by both doctors…

…The impugned evidence tainted the jury’s verdict and the verdict must be set aside.

When The Interests of Justice Call

Parliament teaches a few lessons to lawyers trying to advance issues on appeal to which they did not object in the lower Court.

First, the presumption is that such challenges will not be permitted. 

The appeal Court’s role is not to fix the mistakes of trial counsel in the lower Court proceeding. Counsel’s failure to object at first instance implies that the issue now raised on appeal was insignificant, or at least not central to the main dispute. 

Also, the principle against entertaining such issues encourages lower-Court counsel to be vigilant and ensure that any errors are brought to the Court’s attention immediately, rather than “sitting on one’s hands”, hoping to orchestrate the lower Court proceeding in as favourable position as possible for a potential appeal.

Despite the rule, however, appeal Courts maintain a residual discretion to intervene and order a new trial to prevent a “substantial wrong” or “miscarriage of justice”. This high standard ensures that, where absolutely necessary, appellate scrutiny may be warranted despite counsel’s failure to object. The principle against failing to object must yield to the interests of justice, where required.