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Appeals - Standard of Review - By Topic (2). Burr v. Tecumseh Products of Canada Limited [negligence duty of care]
In Burr v. Tecumseh Products of Canada Limited (Ont CA, 2023) the Court of Appeal considered the SOR of a negligence duty of care:[49] The question of whether one party owes a duty of care to the other is a question of law: Rankin’s Garage & Sales v. J.J., 2018 SCC 19, [2018] 1 S.C.R. 587, at para. 19. ... . Palichuk v. Palichuk [competing expert evidence]
In Palichuk v. Palichuk (Ont CA, 2023) the Court of Appeal considered the standard of review on appeal regarding competing expert evidence:[55] ... As this court recently said in Leonard v. Zychowicz, 2022 ONCA 212, 75 E.T.R. (4th) 21, at para. 21: “A judge’s findings of fact based on the acceptance of expert evidence and their preference of the evidence of one expert over another is entitled to deference and should not be disturbed in the absence of a palpable and overriding error in the assessment of evidence.” . FNF Enterprises Inc. v. Wag and Train Inc. [R21 'no reasonable cause of action' // denial of leave to amend pleadings]
In FNF Enterprises Inc. v. Wag and Train Inc. (Ont CA, 2023) the Court of Appeal set out the SOR for an appeal from a R21 "no reasonable cause of action or defence" order:[11] The standard of review on an appeal from the motion judge’s order is not controversial. A motion judge's decision that a claim discloses no reasonable cause of action is a determination of law reviewable on a standard of correctness. However, a decision denying leave to amend is a discretionary one entitled to deference on appeal: Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, 148 O.R. (3d) 115, at para. 30, leave to appeal refused, [2019] S.C.C.A. No. 409. A refusal to allow the claim to be amended will only be interfered with if the motion judge erred in principle or acted unreasonably in exercising discretion: Mortazavi v. University of Toronto, 2013 ONCA 655, at para. 3, leave to appeal refused, [2014] S.C.C.A. No. 190. . Horani v. Manulife Financial Corporation [denial of leave to amend pleadings]
In Horani v. Manulife Financial Corporation (Ont CA, 2023) the Court of Appeal considered the deference to be applied to an appeal of a denial of leave to amend pleadings:[23] The granting or denial of leave is a discretionary order, which attracts deference on appeal. Absent an error in principle, the applicable standard of review is palpable and overriding error: John Sopinka, Mark Gelowitz and David W. Rankin, The Conduct of an Appeal, 5th ed. (Toronto: Lexis Nexis, 2022), at section 2.60; Conway v. Law Society of Upper Canada, [2016] O.J. No. 451, 2016 ONCA 72, 395 D.L.R. (4th) 100, at para. 16 (leave to amend); Gloucester Organization Inc. v. Canadian Newsletter Managers Inc. (1995), 1995 CanLII 7144 (ON SC), 21 O.R. (3d) 753, [1995] (Gen. Div.) (leave to bring a motion to amend); and Ginkel v. East Asia, 2010 ONSC 905 (CanLII), at para. 17 (leave to bring a motion to amend). . LifeLabs LP v. Information and Privacy Commissioner of Ontario [CJA 21(5) full panel set aside]
In LifeLabs LP v. Information and Privacy Commissioner of Ontario (Div Court, 2023) the Divisional Court considered the standard of review for a CJA 21(5) full panel Divisional Court set aside motion:Jurisdiction and standard of review
[12] A motion to vary a decision of a single judge under s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 shall only be granted if the motion judge made an error of law, which is reviewed on a correctness standard, or made a palpable and overriding error of fact or mixed fact and law. . Benbella v. The National Dental Examining Board of Canada [21.01(1)(b) motion - 'no reasonable cause of action']
In Benbella v. The National Dental Examining Board of Canada (Ont CA, 2023) the Court of Appeal considered the standard of review for a RCP 21.01(1)(b) motion ['no reasonable cause of action']:[15] The standard of review to be applied to an appeal of a decision on a r.21.01(1)(b) motion is correctness: McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 38; Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618, at para. 19. . Wong v. Li [credibility]
In Wong v. Li (Ont CA, 2023) the Court of Appeal cited appellate review deference on credibility issues:[17] The appellant submits that the trial judge erred in failing to adequately address Ms. Li’s credibility. Again, we do not accept this submission. In civil cases, as in criminal cases, a trial judge’s credibility findings are owed considerable deference on appeal: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 72; R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 81. Any deficiencies in a trial judge’s reasons in this respect will rarely merit appellate intervention: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26. . Del Grande v. Toronto Catholic District School Board [discipline]
In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court considered deference accorded to a tribunal on a disciplinary decision, here regarding a school board trustee:[88] In respect of the Sanctions Decision in particular, this court has held that to overturn a penalty imposed by a regulatory tribunal, “it must be shown that the tribunal made an error in principle or that the penalty was clearly unfit, which is to say that it manifestly is deficient or excessive and is a substantial and marked departure from penalties in similar cases.” Khan v. Law Society of Ontario, 2022 ONSC 1951, at para. 77.
[89] In a pre-Doré case, Kempling v. College of Teachers (British Columbia), 2005 BCCA 327, 255 DLR (4th) 169, the British Columbia Court of Appeal upheld the suspension of a teacher who, while off-duty, published a newspaper article and several letters to the editor associating homosexuality with “immorality, abnormality, perversion and promiscuity[.]” The Court of Appeal, conducting a s. 1 analysis, found that the suspension infringed on the teacher’s Charter rights but that the “deleterious effects of the infringement are, nonetheless, relatively limited when compared to the salutary effects, namely, restoring the integrity of the school system and removing any obstacles preventing access for students to a tolerant school environment”:Kempling., at para. 82.
[90] In my view, the Applicant has not met the high burden of establishing that the sanctions determined by the Board were manifestly excessive. The majority of the sanctions are provided for in s. 218.3(3) of the Education Act. The remainder are authorized by Article 10 of the Code of Conduct, which provides for a progressive approach to sanctions including “personal contact, clarification, redirection, request for an apology, reprimand, censure and or other sanctions as per board motion[.]” . Nguyen v. Hu [assessment of damages]
In Nguyen v. Hu (Div Court, 2023) the Divisional Court considers the SOR for assessment of damages, which it holds to be discretionary:[22] The assessment of damages is a discretionary exercise. As the Court of Appeal stated in Michel v. Spirit Financial Inc., 2020 ONCA 398, 151 OR (3d) 583, at para. 30:An appellate court should only intervene in the award of damages where "the trial judge made an error of principle or law, or misapprehended the evidence, or it could be shown there was no evidence on which the trial judge could have reached his or her conclusion, or the trial judge failed to consider relevant factors in the assessment of damages, or considered irrelevant factors, or otherwise, in the result, made 'a palpably incorrect' or 'wholly erroneous' assessment of the damages."[citations omitted] . Graham v. New Horizon System Solutions [credibility]
In Graham v. New Horizon System Solutions (Div Court, 2023) the Divisional Court considers the SOR for credibility findings:[36] ... A tribunal’s assessment of credibility, in particular, is entitled to heightened deference: Gale v. College of Physicians and Surgeons of Ontario, 2015 ONSC 1981, at para. 8. ... . Learmont Roofing Ltd. v. Learmont Construction Ltd. [summary judgment]
In Learmont Roofing Ltd. v. Learmont Construction Ltd. (Ont CA, 2022) the Court of Appeal stated the standard of review for summary judgment:[20] The standard of review on an appeal from a summary judgment ruling, including partial summary judgment rulings, was summarized by this court in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 30:In Hryniak [v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87], at para. 81, Karakatsanis J. ruled that the exercise of powers under the new summary judgment rule attracts appellate deference. The question as to whether there is a genuine issue for trial is a question of mixed fact and law; in the absence of an extricable error in principle, or palpable and overriding error, this determination should not be disturbed on appeal. . Di Blasi v. York (Regional Municipality) [statutory interpretation] [for case cites see the link]
In Di Blasi v. York (Regional Municipality) (Div Court, 2022) the Divisional Court notes that issues of statutory interpretation are issues of law, as set out in Vavilov:[3] The decision below was made under the Expropriations Act, which provides a right of appeal to this court “on a question of law or fact or both” (Expropriations Act, RSO 1990, c. E.26, s.31(1)). The standard of review is the “appellate standard” (Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65). As stated in Vavilov, at para. 37:Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] SCR 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for mixed questions of fact and law where the legal principle is not readily extricable) .... . Godoy v. Godoy [R2.1 frivolous]
In Godoy v. Godoy (Ont CA, 2022) the Court of Appeal held the standard of review for appealing a R2.1 frivolous motion order to highly deferential, as such decision is discretionary:[8] A motion judge’s ruling under r. 2.1.01 is a discretionary decision entitled to appellate deference. Such a decision can be set aside only if the motion judge misdirected themselves or their decision was so clearly wrong as to amount to an injustice: Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8. . Briggs v. Durham (Police Services Board) [remedy]
In Briggs v. Durham (Police Services Board) (Ont CA, 2022) the Court of Appeal considered the appellate standard of review for the remedy granted below (here, whether to remit the case back or not):[50] While this court does not owe deference to the Divisional Court on the issue of whether the Tribunal’s decision was reasonable, the appellate standard of review applies to the issue of remedy. The court must consider whether the Divisional Court made an error of law or a palpable and overriding error of fact or mixed fact and law in deciding to substitute its own decision for the Tribunal’s decision: 2274659 Ontario Inc. v. Canada Chrome Corporation, 2016 ONCA 145, 395 D.L.R. (4th) 471, at para. 49. . Canada (Transportation Safety Board) v. Carroll‑Byrne [discretionary decisions]
In Canada (Transportation Safety Board) v. Carroll‑Byrne (SCC, 2022) the Supreme Court of Canada considered the disclosure of a cockpit voice recorder (CVR) in the course of civil class litigation regarding an airplane crash. The disclosure of the CVR - as an "on‑board recording" - was governed by the Canadian Transportation Accident Investigation and Safety Board Act (CTAISBA). The case thus involves a balancing between the presumed evidentiary search for the truth on the one hand, and the specific statutory (and discretionary) privilege of the CTAISBA.
In the following quotes the court considers the appellate standard of review involving a discretionary matter:[40] The parties disagree on the standard of review for the second issue. The Board argues that the standard is correctness, as it relates to whether the chambers judge applied the correct legal test. Some of the respondents disagree. They say that the Board is, instead, asking this Court to reweigh the factors and to revisit findings of fact, which are entitled to deference.
[41] The disagreement is more apparent than real. A discretionary decision, such as the one contemplated by Parliament in s. 28(6)(c), is generally entitled to deference and may only be interfered with if there is a legal error (considered to be an error in principle), a palpable and overriding factual error (viewed as a material misapprehension of the evidence) or a failure to exercise discretion judicially (which includes acting arbitrarily or being “so clearly wrong as to amount to an injustice”) (Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205, at para. 36, quoting P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629, at para. 15). An error in the interpretation of s. 28(6)(c) of the Act plainly raises a question of law reviewable on correctness. Thus, if the chambers judge applied the wrong test in weighing the public interest in the administration of justice, or misunderstood the privilege in law by misidentifying its statutory purpose, as the Board alleges, he erred in law (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 27; Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 36). I would add that such an error would preclude affording the deference that is ordinarily given to a judge who undertakes the fundamentally discretionary exercise of weighing interests provided for by the Act. Should it be determined that, due to a misapprehension of the law, the chambers judge put the wrong weights on the scales, his balancing would be inherently flawed. If, on the other hand, the chambers judge correctly identified the factors to be weighed but, in his appreciation of the evidence, assigned different weights than the Board would have wished, the alleged error should be understood as one that attacks the discretionary character of the balancing contemplated by s. 28(6)(c). Absent a palpable and overriding error in his appreciation of the evidence, or proof that the chambers judge did not exercise his discretion under the Act judicially, his decision on the production and admissibility of the CVR deserves deference. . MDS Inc. v. Factory Mutual Insurance Company [interest rate]
In MDS Inc. v. Factory Mutual Insurance Company (Ont CA, 2021) the Court of Appeal considered the standard of review that applies to an award of prejudgment interest (which it held to be discretionary):The standard of review for the award of prejudgment interest
[22] The trial judge awarded prejudgment interest at MDS’ actual cost of borrowing, including compound interest, under ss. 128 and 130 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).
[23] Provided that the exclusions to an award of interest set out in the CJA do not apply, the trial judge’s decision to award prejudgment interest at a rate higher or lower than provided for in ss. 128 and 129 is discretionary: see Tribute (Springwater) Limited v. Atif, 2021 ONCA 463, at paras. 26-27. In exercising discretion to award interest at a rate higher or lower than provided for in ss. 128 and 129, the trial judge must take into account changes in market interest rates, the circumstances of the case, the amount claimed and recovered, and other relevant considerations: CJA, s. 130(2).
[24] As this court held in Krieser v. Garber, 2020 ONCA 699, 70 C.C.L.T. (4th) 40, at para. 46:The court will only interfere with the exercise of discretion if it was based on an error of law (determined on a correctness standard), a palpable and overriding error of fact, the consideration of irrelevant factors or the omission of factors that ought to have been considered, or if the decision was unreasonable in the sense that it is not compatible with the judicial exercise of discretion. [Citations omitted.] In particular, the trial judge must consider the factors set out under s. 130(2) of the CJA.
[25] As such, the standard of review in respect of this issue is that of error of law or palpable and overriding error. . Woods v. Jackiewicz [jury trial]
In Woods v. Jackiewicz (Ont CA, 2020) the Court of Appeal comments of the high appellate deference to jury verdicts:[22] The test for appellate interference with a jury verdict is high. As noted in Parent v. Janandee Management Inc., 2017 ONCA 922, at para. 26:A high degree of deference is given by courts to jury verdicts. A civil jury's verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict…. [23] Hourigan J.A. described the high degree of deference owed to jury verdicts in Stilwell v. World Kitchen Inc., 2014 ONCA 770, 327 O.A.C. 146, at para. 36:The appropriate degree of judicial deference to be applied in the consideration of jury answers and verdicts was described by Laskin C.J.C. in his dissent in Wade v. C.N.R., 1977 CanLII 194 (SCC), [1978] 1 S.C.R. 1064, at pp. 1069-1070:Appeal Courts do not fine-comb jury answers but accord them the respect of a common sense interpretation even where there may be some ambiguity in the answers.… It is always timely to be reminded that juries do not write reasons for judgment, and their answers must be taken against the background of the evidence from which they are entitled to select, without manifesting their selection, what is credible, what is significant, what is persuasive to them. It is very often easy for an appellate Court, in the leisurely scrutiny of the transcript, to find significance in pieces of evidence to contradict jury findings, and in so doing to usurp the jury’s function. What an appellate Court may believe from a reading of the transcript may be the very things which a jury disbelieved or believed in part only. It is one thing to interfere with a jury’s verdict where there is simply no evidence to support its findings or to support a critical one; it is a different thing, and not to be encouraged, to interfere with its findings where there is evidence, however slight, on which they may be based, but where because of offsetting evidence a question of credit and weight arises. These are matters for the jury alone. . DeGroot v. Licence Appeal Tribunal [mootness]
In DeGroot v. Licence Appeal Tribunal (Div Court, 2022) the Divisional Court considered an appeal from a matter than the tribunal below had deemed moot, here the continuation of SABS auto insurance benefits when they had not be granted in the first place:[33] As it relates to the question of mootness, the decision of whether to hear and decide a moot issue is one which is an exercise of discretion. This court must therefore defer to the exercise of the LAT’s discretion unless the decision of the Adjudicator was unreasonable; was based on irrelevant or extraneous considerations; was based on a wrong principle, or where no weight had been given to a relevant consideration. - See Canadian Pacific Ltd. v. Matsqui Indian Band 1995 CanLII 145 (SCC), [1995] 1 SCR 3 at paras. 39 and 112; Volochay v. College of Massage Therapists of Ontario 2012 ONCA 541 at para. 52; Strickland v. Canada (Attorney General) 2015 SCC 27 at para. 39; and Ball v. McAulay 2020 ONCA 481 at paras. 118 and 124. . Kawa Arab v. Unica Insurance [reconsideration]
In Kawa Arab v. Unica Insurance (Div Court, 2022) the Divisional Court considers the standard of review on a reconsideration under a License Appeal Tribunal SABS auto insurance case:[20] The Court’s review of a Reconsideration Decision is narrower than the review of an Adjudicator’s decision by the Vice Chair who undertakes the review. The question for the Court is to determine whether in her reconsideration of the underlying decision, the Vice Chair erred in law in the way she conducted the review or in her decision. . Ontario College of Veterinarians of Ontario v. Dr. Ackerman [professional penalty]
In Ontario College of Veterinarians of Ontario v. Dr. Ackerman (Div Court, 2022) the Divisional Court stated the standard of review for a tribunal's penalty decision, here one for veterinary discipline:[43] In this case, there is no dispute that the test for reviewing the penalty is whether the Committee made an error in principle or the penalty was clearly unfit: Mittleman, at para. 41. For this court to intervene, the CVO must establish that the Committee’s decision was clearly unreasonable, demonstrably unfit or represented a substantial and marked departure from penalties in similar cases: 2099065 Ontario Inc. v. Ontario (Health and Long-Term Care), 2021 ONSC 4319, at para. 61. . Fair v. BMO Nesbitt Burns Inc. [summary judgment order]
In Fair v. BMO Nesbitt Burns Inc. (Ont CA, 2022) the Court of Appeal considered the standard of review for summary judgment rulings:[16] The motion judge’s findings as to whether there was a genuine issue requiring a trial, and whether it was necessary to resort to the additional fact-finding powers the summary judgment rule provides for in order to make that determination, are entitled to deference: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 80-81. We see no basis to interfere. . Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario [administrative penalty]
In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court set out the standard of review for administrative penalties:[7] ... To review a penalty, the Appellant must show that the Committee made an error in principle or that the penalty was clearly unfit. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances (Gill v. College of Physicians and Surgeons of Ontario, 2022 ONSC 49, at para. 82). . Bailey v. Capreit Limited Partnership [damage quantum]
In Bailey v. Capreit Limited Partnership (Div Court, 2022) the Divisional Court considered the standard of review for damage quantum before the LTB:[16] If a question of law is identified, the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 36 and 37; O’Shanter Development Company Limited v. Terry Babcooke et. al, 2022 ONSC 5040, at para. 11; Morgan, at para. 7.
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[22] .... The adequacy and quantum of general damages is a question of mixed fact and law (O’Shanter, at para. 28). ...
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