When should the Court of Appeal determine a factual issue as a matter of first instance? And how does it go about doing that? The Ontario Court of Appeal faced these questions in McLean v. Knox (http://www.ontariocourts.ca/decisions/2013/2013ONCA0357.htm).
The genesis of the case was a car accident where the plaintiff was injured as a result of Knox’s drunk driving. The plaintiff sued several parties, but after Knox was noted in default, and Finnigan’s (the bar where the plaintiff and Knox had been drinking) admitted “at least 1% liability”, the other defendants were released and the claim went to trial to determine the plaintiff’s damages, and apportion liability between Knox, Finnigan’s and the plaintiff himself (contributory negligence for accepting a ride with a clearly intoxicated driver). The jury assessed the plaintiff’s damages under various heads and, despite its assessment being challenged before the trial judge and the Court of Appeal, the Court of Appeal upheld the jury’s amounts. The jury also apportioned liability as follows:
The Court of Appeal accepted the plaintiff’s submissions that the trial judge’s instructions erroneously led the jurors to believe that 1% was the only figure they could return for the liability of Finnigan’s, nor did the instructions adequately convey that the plaintiff’s decision to accept a ride with Knox, and thus his contributory negligence, was arguably in part due to Finnigan’s overserving him as well. The plaintiff thus sought a new trial on everything except Finnigan’s admitted liability. Gillese J.A. refused to so order:
 I would not accede to this submission. As I have mentioned, this case is very similar to Pilon #1. In Pilon #1, this court found that the legal errors in the jury instructions would normally result in a new trial being ordered. However, it declined to order a new trial and, instead, decided the issue of apportionment itself. In refusing to order a new trial, the court considered the amount of time that had passed since the accident, the length of the original trial, and the costs involved in a new trial.
 Those same considerations apply to the present case. The accident in this case took place in 2005. It is now 2013. Memories will be stale. The trial took place over 13 days and involved extensive medical evidence. The costs involved in a new trial would be very significant. Those costs must be considered alongside the very modest amounts that the jury awarded for damages. Apart from the amount that the jury awarded for future income loss, there was no real challenge to those awards.
 A new trial in a civil case will only be ordered when the interests of justice plainly require it: see Fiddler v. Chiavetti, 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 9. For the reasons given, the interests of justice augur against ordering a new trial. Instead, this court should perform the apportionment task that the jury ought to have been instructed to perform.
 If the parties are unable to resolve the apportionment issues, they may make brief written submissions, not to exceed eight pages, within fifteen days of the date of release of these reasons, on the issue of the apportionment of liability for the plaintiff’s damages. …
She added that those submissions should also address a subsidiary issue which the plaintiff had raised as an alternative ground in his appeal: the apportionment of the deductible, which was “interrelated” to the apportionment of liability. She provided specific guidance on how that issue should be addressed.
The decision shows that, while the Court of Appeal is not a fact-finding Court, it nonetheless will not order a new trial in circumstances where the “interests of justice” do not warrant it and instead take on that role itself.