The Conduct of an Appeal Blog

Harle v. 101090442 Saskatchewan Ltd: Clarifying the Scope of a Trial Court’s Jurisdiction on Remitted Issues

Dec 10, 2016 3 MIN READ
Mark A. Gelowitz

Partner, Disputes, Toronto

The Saskatchewan Court of Appeal in Harle v. 101090442 Saskatchewan Ltd. clarified the scope of the trial court’s jurisdiction in hearing new evidence on issues remitted following appeal: provided that the evidence does not pertain to facts already accepted by the courts, trial courts have the jurisdiction to hear fresh evidence on issues remitted from appellate courts.

Harle involved an agreement for the sale of a farm that had been cancelled by the vendors. While the purchaser was successful at trial for specific performance of the sale agreement, the vendors successfully appealed the decision and had the order for specific performance set aside. The matter was then remitted to the trial judge to assess damages owing to the purchaser as a result of the vendors’ breach.

At issue in the second appeal was whether the trial judge erred in permitting the purchaser to resile from the position it took at the initial trial and whether new evidence could be adduced.

Underlying the Court of Appeal’s analysis in Harle is the interplay between res judicata and stare decisis.

The Court of Appeal stated:

[21]           That is, when this Court remits a matter to a trial court, it is not for the trial court to question this Court’s decision; it is the duty of the trial court to give full effect to that decision, whatever the trial court’s views may be as to the intrinsic wisdom of it. This is so because stare decisis requires a trial court to follow the law as interpreted by its coordinate appellate court. Therefore, when a matter is remitted for determination, the trial court must follow the directions of the appellate court in making that determination. Of course, the trial court may look to the appellate court’s reasons and to the original trial decision to determine the scope of the matter remitted. But, to the extent the appellate court’s reasons alter the trial court’s findings and its initial decision, the appellate court’s findings and decision must be followed.

The Court of Appeal ultimately allowed the appeal, ruling that the purchaser could resile in part from its earlier position and that new evidence could be adduced on the issues remitted to the trial judge:

[45]           For these reasons, I would allow the appeal and vary the impugned rulings. I would set aside the ruling permitting [the purchaser] to resile from its concession that damages ought to be assessed on the basis of the difference in land values. However, I would not interfere with the trial judge’s exercise of his discretion to permit [the purchaser] to resile from its position that the date of trial is the appropriate date for assessing damages. Moreover, I would not interfere with his decision to permit [the purchaser] to reopen the trial to adduce new evidence on the issue of damages, except to the extent it permits [the purchaser] to adduce evidence of a plan for the property. In accordance with Jackson J.A.’s direction in the SKCA Decision (paras 102 and 109), any new submissions as to damages must be confined to the two issues remitted to the trial judge, being the appropriate date for the assessment of damages and evidence of land value as at that date.