Appeals and Judicial Review - Misapprehension of Evidence. Patchett v. Optimum et al
In Patchett v. Optimum et al (Div Ct, 2021) the Divisional Court considered an appeal based on error in fact-findings:
 The circumstances in which findings of fact or the assessment of evidence may give rise to an error of law are limited. As stated by the Court in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 at paras. 28-29:. 1352194 Ontario Inc. v. Vince
There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC),  1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45,  3 S.C.R. 197, at paras. 25 and 29. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference (Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52 at paras. 24-25).
If the adjudicator considered all the mandatory or relevant evidence, but reached the wrong conclusion, then the error is one of mixed law and fact. If the adjudicator erred in applying the law (the correct legal standard) to the facts, that is a matter of mixed law and fact: Southam Inc. at paras. 41-42.
In 1352194 Ontario Inc. v. Vince (Div Ct, 2021) the Divisional Court granted an appeal on the ground of misapprehension of evidence:
 In Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 125, the Court of Appeal held that a misapprehension of evidence justifies appellate intervention where the palpable and overriding error goes to the core of the outcome of the case. Based on my findings above, I conclude that this is such a case. The judgment is set aside.. Lamba v. Mitchell
In Lamba v. Mitchell (Div Ct, 2021) the Divisional Court considered an appellant's position that the trial judge had ignored evidence:
 A trial judge’s failure to refer to a specific piece of evidence is addressed in Cowles v. Balac (2006), 83 O.R. (3d) 660, 2006 CanLii 34916, at para. 117:. Okoye v. De Melo
A trial judge's failure to refer to a specific piece of evidence does not per se constitute palpable and overriding error. It is only when an omission gives rise to a reasonable belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected her conclusion that an appellate court is entitled is intervene: Housen v. Nikolaisen, supra, at para. 72.
In Okoye v. De Melo (Div Ct, 2021) the Divisional Court characterized the appeal ground of misapprehension of evidence:
A “misapprehension” of the evidence does not constitute an error of law unless the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45,  3 S.C.R. 197, at paras. 25 and 29.. R. v. Pavao
In R. v. Pavao (Ont CA, 2021) the Court of Appeal considered the appeal issue of misapprehension of evidence:
 In R. v. Vant, 2015 ONCA 481, 324 C.C.C. (3d) 109, Watt J.A. summarized, at paras. 108-109, the well-established principles applicable when assessing an alleged misapprehension of evidence:. Hacopian-Armen Estate v. Mahmoud
A misapprehension of evidence includes a failure to consider relevant evidence, a mistake about the substance of evidence and a failure to give proper effect to evidence … Not every misapprehension of evidence will vitiate a finding of guilt. The nature and extent of the alleged misapprehension and its significance to the verdict rendered requires consideration in light of the fundamental principle that a verdict be based exclusively on the evidence adduced at trial. In cases where credibility is a key issue, the impact of a misapprehension of evidence will be particularly acute. In such cases, “it is essential that the findings be based on a correct version of the actual evidence”, as “[w]rong findings on what the evidence is destroy the basis of findings of credibility”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 541, citing Whitehouse v. Reimer (1980), 1980 ABCA 214 (CanLII), 116 D.L.R. (3d) 594 (Alta. C.A.), at p. 595.
When an appellant alleges a misapprehension of evidence, our first task is to consider the reasonableness of the verdict. An appellant who establishes an unreasonable verdict is entitled to an acquittal. Absent an unreasonable verdict, our task is to decide whether the misapprehension of evidence occasioned a miscarriage of justice. An appellant who shows that a misapprehension of evidence resulted in a miscarriage of justice is usually entitled to have his or her conviction quashed and a new trial ordered. If an appellant fails to demonstrate that any misapprehension resulted in an unreasonable verdict or produced a miscarriage of justice, he or she is then left to persuade the appellate court that the misapprehension amounted to an error of law. If the court is convinced of such an error, the Crown then bears the burden of showing that there was no miscarriage of justice under s. 686(1)(b)(iii). [Citations omitted.]
 Absent a misapprehension of evidence, it is ultimately for the trier of fact to determine what inferences are to be drawn from the evidence as a whole and whether the cumulative effect of those inferences satisfies the standard of proof required in a criminal case: R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 229. As such, appellate courts may not interfere with findings of fact made and the factual inferences drawn by a trial judge unless those findings and inferences are (i) clearly wrong, (ii) unsupported by the evidence, or (iii) otherwise unreasonable: Tsekouras, at para. 230.
In Hacopian-Armen Estate v. Mahmoud (Ont CA, 2021) the Court of Appeal considered the test for misapprehension of evidence:
 In Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at paras. 124-25, leave to appeal refused,  S.C.C.A. No. 409, this court explained when a trial judge’s misapprehension of the evidence warrants appellate intervention:. Bayford v. Boese
In my view, therefore, the motion judge's finding that he had "no trouble" concluding that several of the Huang/Hengeveld indicators of capacity were not met reflects a misapprehension of the evidence. A misapprehension of the evidence "may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence". Here, the motion judge made a mistake about the substance of the evidence and failed to give proper effect to the evidence, by finding that the evidence showed that several of the Huang/Hengeveld indicators of capacity were absent, when that was not so.
A misapprehension of evidence justifies appellate intervention where it is palpable and overriding, that is, where the misapprehension is obvious and goes to the very core of the outcome of the case. That is so here, because the motion judge's misapprehension is obvious and was essential to his conclusion that Mr. Carmichael was incapable of suing GSK until December 2, 2009, because of his psychological condition. [Emphasis added; citations omitted.]
In Bayford v. Boese (Ont CA, 2021) the Court of Appeal held that a serious misapprehension of evidence that is 'palpable and overriding' amounts to an error of law:
 A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. Doherty J.A. noted, at p. 218, that most errors that constitute a misapprehension of evidence will not be regarded as involving a question of law. However, appellate intervention is warranted where the misapprehension of evidence is palpable and overriding, such that it is plain to see or obvious and goes to the very core of the outcome of the case: see Waxman v. Waxman, 2004 CanLII 39040, at paras. 296-97, leave to appeal refused,  S.C.C.A. No. 291; Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 125, leave to appeal refused,  S.C.C.A. No. 409.