In civil proceedings, a complaint of procedural unfairness based on a trial judge's reliance on observations of a party's courtroom demeanour requires the complainant to establish that the legal representatives were unaware of the conduct and that the observations materially contributed to the decision. The categories of procedural unfairness identified in criminal appeals (Weiss v The Queen) — unfairness shown to have led to an unjust result, unfairness precluding assessment of the outcome, and departure from an essential requirement of trial — are applicable by analogy to civil proceedings. A party seeking indemnity costs must demonstrate unreasonable conduct, but the standard for such orders has become more readily satisfied in modern practice.
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