Does the Court of Appeal have a role in determining the balance of probability of a retrial on an appeal from a judgment of first instance?
Canada (Federal), Canada
The following excerpt is from Goguen v. Gibson, 1984 CanLII 2929 (FCA):
It is well known that on an ordinary appeal from a judgment of first instance, the appellate court's role is not to retry the case on the facts and while it must ascertain that the trial judge had not made some error in his appreciation of the evidence as a whole, "... it is not ... a part of its function to substitute its assessment of the balance of probability for the findings of the Judge who presided at the trial". (Ritchie J. delivering the judgment of the court in Stein v. The Ship "Kathy K" (1975), 1975 CanLII 146 (SCC), 62 D.L.R. (3d) 1 at p. 5, [1976] 2 S.C.R. 802 at p. 808, 6 N.R. 359. Is the present appeal governed by the same basic principle?
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