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Appeal - Standard of Review (SOR) - Court of Appeal with Leave [CJA s.6(1)(a)]. Elkins v. Van Wissen
In Elkins v. Van Wissen (Ont CA, 2024) the Ontario Court of Appeal made the interesting point that an appeal with leave to the CA was heard on a standard of review of "on a question that is not a question of fact alone" (which includes issues of mixed fact and law), despite the lower Divisional Court appeal being heard on 'questions of law' (eg. LATA, RTA):[74] To determine what standard of review this court is to apply when deciding Issue 2, we must consider the statutory provision which led to that issue coming before this court: Vavilov, at para. 33. In this case, s. 6(1)(a) of the CJA is the relevant provision, as the Tenants obtained leave to appeal the Divisional Court order pursuant to it.
[75] Section 6(1)(a) provides that an appeal lies to this court from an order of the Divisional Court, with leave, “on a question that is not a question of fact alone”. Thus, when an appeal comes before this court pursuant to s. 6(1)(a) of the CJA, the appeal can be on a question of law and/or on a question of mixed law and fact. The only limitation is that the question cannot be one of fact alone. Because the legislation does not indicate what standard of review this court is to apply on appeals heard pursuant to s. 6(1)(a), it is necessary to characterize the nature of Issue 2 to determine what standard of review applies. Thus, the question becomes, does Issue 2 raise a question of law or a question of mixed law and fact? If the former, the correctness standard of review applies. If the latter, absent an extricable error in principle, deference is owed to the Divisional Court decision.
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