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Appeals - Standard of Review (SOR) - Extricable Issues of Law
COMMENT
Vavilov [para 37] makes the point that we should separate 'readily extricable principles of law' from mixed issues of fact and law wherever possible.
MORE CASES
Part 2
. Spina v. Shoppers Drug Mart Inc.
In Spina v. Shoppers Drug Mart Inc. (Ont CA, 2024) the Ontario Court of Appeal considered class action franchise appeals (direct and cross) from summary judgment decisions.
Here the court considers the SOR for standardized contracts appeals (which is normally 'correctness'), but finds a further exception based on Ledcor principles to return it to the 'palpable and overriding' standard:(1) Standard of Review of the Interpretation of the Agreements
[48] The parties disagree about what standard of review applies to the interpretation of the Agreements.
[49] The Ontario Class submits that a correctness standard applies to the motion judge’s interpretation of the Agreements. It submits that this court has applied a correctness standard of review to contracts of adhesion used within a single organization. The Ontario Class claims however, that on either a correctness or a deferential standard, the errors the motion judge made are reversible.
[50] Shoppers submits that the standard of review is palpable and overriding error. It submits that there is a significant factual matrix specific to the parties and there is no precedential value to this contractual interpretation. Shoppers contends that the motion judge’s interpretation of the Agreements was not limited to the words on the page, but was informed by “extensive consideration of a voluminous factual record regarding the commercial relationships respectively between the Associates, Shoppers and generic drug manufacturers, as well as the statutory regime governing professional allowances.”
[51] The line between questions of law, which are reviewed on a correctness standard, and those where the issue involves the application of the law to a specific and distinct set of facts which attract a deferential standard of review, is not always clear.
[52] The Supreme Court has said that “in contractual interpretation, the goal of the exercise is to ascertain the objective intent of the parties — a fact-specific goal — through the application of legal principles of interpretation”: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 49.
[53] Contract interpretation is therefore generally a question of mixed fact and law subject to a deferential standard of review unless there is an extricable question of law identified or “the appeal involves the interpretation of a standard form contract, the interpretation at issue is of precedential value, and there is no meaningful factual matrix specific to the particular parties to assist the interpretation process”: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, at paras. 21, 46.
[54] In Ledcor at para. 39, Wagner J., as he then was, explained why some standard form contracts are subject to review on the standard of correctness and not on a deferential standard of review citing Geoff R. Hall, Canadian Contractual Interpretation Law, 3rd ed. (Toronto: LexisNexis, 2016):[T]he interpretation of the standard form contract could affect many people, because “precedent is more likely to be controlling” in the interpretation of such contracts … It would be undesirable for courts to interpret identical or very similar standard form provisions inconsistently, without good reason. The mandate of appellate courts — “ensuring the consistency of the law” (Sattva, at para. 51) — is advanced by permitting appellate courts to review the interpretation of standard form contracts for correctness. [Emphasis added, citation omitted.] [55] Because consistency in the law is important, “[a]ppellate courts should consider whether ‘the dispute is over a general proposition’ or ‘a very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future’”: Ledcor, at para. 48, quoting Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 37.
[56] This court has also held that the absence of one of the three Ledcor factors, outlined above at para. 52, should not automatically lead to the imposition of a deferential standard of review. In Bridging Finance, for example, this court applied a correctness standard to a standard form contract that had no relevant factual matrix that informed the motion judge’s contractual analysis, but also no precedential value because there was unlikely to be litigation about the contract in the future: Ontario Securities Commission v. Bridging Finance Inc., 2023 ONCA 769, 169 O.R. (3d) 109, at paras. 8-14.
[57] On the other hand, in Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205 (“Fontaine (SCC)”), the Supreme Court held that the interpretation of the Indian Residential Schools Settlement Agreement (the “IRSSA”), a comprehensive settlement of a class action involving thousands of survivors of residential schools, was reviewable on a deferential standard of palpable and overriding error, as there was a distinct factual matrix and no significant precedential value.
[58] The settlement agreement involved two forms of financial compensation available to former students of residential schools: one based on the amount of time spent at a residential school, and another in which former students who were survivors of abuse could bring claims for compensation through a specifically designed Independent Assessment Process (“IAP”). The Supreme Court held that at para. 35 that,While the IRSSA undoubtedly has “very significant implications for Canada and our aboriginal peoples” (C.A. reasons, at para. 294), it is at root a contract, the meaning of which depends on the objective intentions of the parties. As the majority at the Court of Appeal observed, the question of impact is distinct from precedential value. While the supervising judge’s interpretation of the IRSSA will impact thousands of IAP claimants, it will have no significant precedential value outside of the IAP due to the IRSSA’s sui generis nature. And, as shall become apparent below, the factual matrix looms large in ascertaining the meaning of this particular contract. [59] This court’s reasons as referred to in the above passage with approval, address the difference between impact on the many persons involved in the litigation and the precedential value of the decision itself.
[60] Strathy C.J.O., for the majority in Fontaine v. Canada (Attorney General), 2016 ONCA 241, 149 O.R. (3d) 703, recognized at paras. 95 and 96 that:The question is not whether the decision will impact many people, but whether it will have precedential value, in the sense that it provides guidance to adjudicators or resolves an issue that could arise in future litigation. The fact that the outcome of the interpretation of the agreement will affect many – indeed many thousands – of claimants, is not, of itself, a reason to elevate the standard of review to correctness.
... There will be no future cases like this one. This is a once-and-for-all determination of the rights of all parties relating to these issues under the IRSSA. [Emphasis added.] [61] While this court and the Supreme Court considered the fact that the agreement would affect many, a deferential standard of review was applied as the factual matrix was significant in the interpretation of the agreement and there was little precedential value. As such, the need to provide guidance to others beyond the scope of the litigation at play was not significant.
[62] In this case, the Agreements are standard form contracts that govern the franchise relationship between Shoppers and the Associates across Canada, excluding Québec. While the IRSSA was not a standard form contract, in that it was “the product of extensive negotiations” among the parties (Fontaine (SCC), at para. 5), I find the directions from the Supreme Court on the meaning of precedential value relevant.
[63] I now consider the Ledcor factors as they apply in this case. First, there is no doubt that the Agreements are standard form contracts.
[64] Second, with respect to precedential value, the Agreements are not industry-wide contracts: they only govern the franchise relationship between Shoppers and the Associates, and the issues raised in this appeal regarding Professional Allowances will apply only to the Ontario Class as the Legislation applies only in Ontario. The Ontario Class did not argue that there would be any significant precedential value to the questions of contractual interpretation at issue in this appeal. I conclude that the interpretation of these provisions in this class action will not likely arise again in cases involving other parties and the precedential value is therefore not significant.
[65] Third, there is a factual matrix specific to these parties that is relevant to the interpretation of these Agreements. The 2002 Agreement was drafted by Shoppers before the Professional Allowance Regime came into existence. It was signed by Associates at various times from 2002 until the next iteration of the Agreement was drafted in or around 2010. As such, the Agreement was signed with Associates before and after the legislative changes were made. The changing legislative landscape and Shoppers’ past practices are relevant to the interpretation of the Agreements.
[66] In sum, although the Agreements are standard form contracts, there is a distinct factual matrix and no significant precedential importance, such that the analysis is not a question of law alone but rather, a question of mixed fact and law, reviewable on a palpable and overriding error standard of review. . Municipal Property Assessment Corp. v. Bell Canada
In Municipal Property Assessment Corp. v. Bell Canada (Div Court, 2024) the Divisional Court dismissed an MPAC appeal against an Assessment Review Board ruling, here that related "to MPAC’s assessment of a telecommunications switching station in downtown Toronto owned by the respondent Bell Canada".
Here the court sets out a test for appellate SOR 'extricable errors of law':[24] .... Extricable questions of law include legal errors involving the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor: Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, 135 O.R. (3d) 241, at para. 19, citing Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 53. . Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc. [IMPORTANT]
In Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc. (SCC, 2024) the Supreme Court of Canada allows an appeal on the contractual and statutory interpretation of the exclusion provision [SGA s.53] in the Sales of Goods Act.
Here the court is critical of practice emanating from the earlier contractual SOR (of Sattva), focussing on the 'extricable questions of law' issue which it finds has been over-applied to wrongly achieve the non-deferential correctness standard of review when it was not warranted:[28] In Sattva, this Court established that contractual interpretation “involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix” (para. 50). Accordingly, deference is owed to the trial judge, who is best placed to make findings as to the nature of the factual matrix, and the predominantly applicable standard of review is palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 21). The search for an extricable question of law is, in my view, not consistent with Sattva’s holding that the interpretation of contracts and agreements are mixed questions of law and fact and that extricable questions of law will be “rare” and “uncommon” (para. 55; Corner Brook (City) v. Bailey, 2021 SCC 29, [2021] 2 S.C.R. 540, at para. 44). Housen expressly admonished that courts should “be cautious in identifying extricable questions of law in disputes over contractual interpretation” because ascertaining the objective intention of the parties, which is the prevailing goal of contractual interpretation, is an “inherently fact specific” exercise (Sattva, at paras. 54-55, citing Housen, at para. 36). The subsequent tendency of some appellate courts to use Sattva to elevate the standard of review, when it was intended to do the opposite, is to be resisted (the Hon. D. Brown, “Has Sattva spawned an era of less appellate deference?” (2023), 41:4 Adv. J. 26, at p. 27).
[29] Although this Court in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23, held that standard form contracts are an exception to Sattva’s ruling that contractual interpretation is generally a question of mixed fact and law, it was nevertheless acknowledged that even in that context, a court can look to “the parties’ reasonable expectations” in order to ascertain the true meaning of a contractual term (para. 95). Consequently, the implication from Ledcor is that where meaningful evidence of the factual matrix does exist and where there is a contract of “utter particularity” due to a unique set of circumstances, the modern contractual interpretation approach from Sattva continues to apply (para. 42, citing Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 37).
[30] The facts of this case establish that the contract in question was one of “utter particularity” — indeed, the exclusion clauses at the centre of this appeal were drafted by the seller in response to the buyer’s particular demand for speedy delivery of the goods without additional testing: because the buyer wanted to avoid incurring liquidated damages. Moreover, there were no errors on extricable questions of law. As I explain in greater detail below, the Court of Appeal read Hunter Engineering as requiring certain formalities not set out in s. 53 of the SGA and which are at odds with contemporary principles of contractual interpretation. By classifying the perceived deficiencies as errors of law, the Court of Appeal sought to create general principles of law that would govern the interpretation of all exclusion clauses ousting implied conditions in a contract of sale, while also diminishing the role of the factual matrix in giving meaning to exclusion clauses.
[31] This derogation from the principles of appellate review laid down by this Court in Housen and Sattva was in error. The question of whether contracting parties came to an “express agreement” under the SGA involves a statutory component; however, where the parties’ contract is in writing, as in this case, it will largely be based on the consideration of the specific written agreement between the parties, the words expressly employed to oust the liability and the surrounding circumstances. Accordingly, an express agreement capable of satisfying s. 53 might not look the same for different sets of parties and is likely to vary depending on who the contracting parties are and what their circumstances are. The inevitable variation between parties’ circumstances means it would be of no use to prescribe a rigidly uniform description of what an express agreement must contain in every instance. This also means that findings by triers of first instance with respect to the factual matrix against which a given contract is struck will continue to be significant when a clause ousting a statutory condition is at issue.
[32] Further, the mere fact that the contractual interpretation in this case involves a consideration of a statutory provision does not automatically mean that a review must be on a correctness standard. While it is the statute that prescribes the requirement for an express agreement, it is still the common law of contracts that informs what an express agreement must look like for a specific set of parties. As a result, the interpretive approach must be flexible enough to account for the parties’ varying commercial circumstances and it follows that the appropriate standard of review must be that of palpable and overriding error, even where the analysis necessarily implicates s. 53 and implied statutory conditions. Thus, it was both the substance of the Court of Appeal’s statements with respect to the perceived deficiencies in the trial reasons and how the Court of Appeal elevated those statements into binding legal requirements in all cases that, in my respectful view, led it into error.
[33] In conclusion, the standard of review for appellate courts concerning the “express agreement” requirement under s. 53 does not deviate from the general rule set down by this Court in Sattva — questions of mixed fact and law remain susceptible to a deferential standard of review, even where the analysis necessarily implicates implied statutory conditions. While errors on extricable questions of law, if properly identified, can be the basis for correctness review, reviewing courts should approach the task of identifying such errors cautiously, and with an eye towards the relative competencies of trial and appellate courts. However, as I explain below, the Court of Appeal did not identify errors on extricable questions of law that justified the application of the standard of review of correctness. . Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court considers all of the appellate standards of review for: 'palpable and overriding' errors, 'extricable errors of law' (that can sometimes occur with mixed findings of law and fact), and discretionary decisions:[26] The standard of review is palpable and overriding error for questions of fact and for questions of mixed fact and law (where the legal principle is not readily extricable), including with respect to the application of correct legal principles to the evidence.
[27] A palpable and overriding error is an obvious error that is sufficiently significant to vitiate the challenged finding: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 39. The appellant must show that the error goes to the root of the challenged finding such that it cannot safely stand in the face of the error: Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.), at para. 297, leave to appeal refused, [2004] S.C.C.A. No. 291.
[28] When the decision under appeal is fact-intensive or involves the exercise of discretion, care must be taken in identifying extricable errors of law since the process of severing out legal issues can undermine the standard of review analysis. An arguably unreasonable exercise of discretion is not an error of law or jurisdiction: Wood Buffalo (Regional Municipality) v. Alberta (Energy and Utilities Board), 2007 ABCA 192, 80 Alta. L.R. (4th) 229, at para. 8; Natural Resource Gas Limited v. Ontario (Energy Board), 2012 ONSC 3520 (Div. Ct.), at para. 8; Conserve Our Rural Environment v. Dufferin Wind Power Inc., 2013 ONSC 7307 (Div. Ct.), at para. 13.
[29] While an appellate court is empowered to replace a tribunal’s findings on questions of law with its own, the correctness standard does not detract from the need to respect the tribunal’s specialized function. The tribunal’s subject matter experience and expertise relating to the requirements of its home statute are to be taken into account: Reisher v. Westdale Properties, 2023 ONSC 1817 (Div. Ct.), at paras. 9-10, citing Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), at para. 31; Vavilov, at para. 36. . Glencore Canada Corporation v. Canada
In Glencore Canada Corporation v. Canada (Fed CA, 2023) the Federal Court of Appeal considered a second appeal (first was from the Tax Court) of the tax categorization status of 'non-completion fees' that the taxpayer received on the failure of it's auction bids to purchase shares of another corporation.
In these quotes the court states the applicable SOR, but also considers extricable legal issues:[21] The Tax Court judgment is subject to appellate standards of review as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Determinations of fact and mixed fact and law are entitled to deference and attract the palpable and overriding error standard of review. Determinations of law (including extricable legal questions) are subject to correctness review.
[22] Recently, the Supreme Court of Canada commented on the application of these standards of review in circumstances where the overall conclusion is based on an extricable error of law (Deans Knight Income Corp. v. Canada, 2023 SCC 16 at para. 121). The reasons of the majority state that no deference is owed to the overall conclusion, but that deference continues to apply to factual findings. However, it cautions that “facts which were decisive when answering the wrong legal question are not necessarily as salient when answering the right one.” . Tibollo v Robinson
In Tibollo v Robinson (Div Court, 2023) the Divisional Court considered how an error of mixed fact and law may 'contain' an extricable error of law, subject to the higher SOR of correctness:[11] For questions of law, the standard of review is correctness. For questions of mixed fact and law, the standard of review is palpable and overriding error unless there is an extricable question of law, to which the correctness standard would apply. As stated in Housen v. Nikolaisen 2022 SCC 33, [2002] 2 SCR 235 at para 27:Once it has been determined that a matter being reviewed involves the application of a legal standard to a set of facts and is thus a question of mixed fact and law, then the appropriate standard of review must be determined and applied. Given the different standards of review applicable to questions of law and questions of fact, it is often difficult to determine what the applicable standard of review is. In Southam, supra, at para. 39, this Court illustrated how an error on a question of mixed fact and law can amount to a pure error of law subject to the correctness standard:... if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law. Therefore, what appears to be a question of mixed fact and law, upon further reflection, can actually be an error of pure law. [12] Both parties agree that the motion judge applied the correct test in this case as set out in Grefford v. Fielding, (2004) 2004 CanLII 8709 (ON SC), 70 O.R. (3d) 371 (S.C.). However, in applying the Grefford test, Mr. Tibollo argues the motion judge made two errors:1. In relation to the second branch of the test, the motion judge misapplied the law and therefore committed an error in law.
The standard of review for this alleged error is correctness.
2. In relation to the third branch of the test, the motion judge made a finding of fact without an evidentiary basis, and therefore committed an error of fact.
The standard of review for this alleged error is overriding and palpable error. . Markowich v. Lundin Mining Corporation
In Markowich v. Lundin Mining Corporation (Ont CA, 2023) the Court of Appeal considered the SOR that applies when an extricable legal error occurs within an issue of mixed law and fact (it's 'correctness'):(1) Standard of review
[39] The standard of review on a question of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Questions of fact or mixed fact and law that do not raise an extricable question of law are to be reviewed on a standard of palpable and overriding error: Housen, at paras. 10 and 36. However, where an error of mixed fact and law can be attributed to the application of an incorrect standard, a mischaracterization of a legal test or a similar error in principle, this is an error of law, reviewable on a correctness standard of review: Housen, at paras. 33 and 36; Mask v. Silvercorp Metals Inc., 2016 ONCA 641, 132 O.R. (3d) 161, at para. 37.
[40] In this case, the primary issue on appeal is the motion judge’s interpretation of the definition of “material change” in the Securities Act, which is a question of law reviewable on a standard of correctness. Given that the motion judge applied this incorrect definition to the evidence available on the motion, his application of the test is also reviewable on a standard of correctness. . Canada (Border Services Agency) v. Danson Décor Inc.
In Canada (Border Services Agency) v. Danson Décor Inc. (Fed CA, 2022) the Federal Court of Appeal considers the 'extracting' of an extricable legal issue in the course of establishing the standard of review in a mixed fact and law appeal:[13] Consequently, appeals filed pursuant to subsection 68(1) of the Customs Act such as this one are no longer subject to review based on administrative law standards, but rather on appellate standards. I am thus of the view that the assessment of the evidence, and in particular the expert evidence, is beyond the jurisdiction of this Court sitting on appeal of the Tribunal. Since subsection 68(1) grants a statutory right to appeal decisions of the CITT to this Court solely on questions of law, the applicable standard of review is correctness: Vavilov at para. 37. The first issue, therefore, is to examine the grounds of appeal to determine whether they do raise a question of law. As this Court noted in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, [2020] CarswellNat 4287 (at para. 16), it is not always easy to identify an extricable question of law when it is embedded in a question of mixed fact and law. In order to determine whether an appeal undertaken pursuant to subsection 68(1) of the Customs Act raises an extricable question of law, the Court must strive to identify the "“essential character”" or "“true substance”" of the appeal and the best way to do this is to look at the notice of appeal and, if necessary, to the appellant’s memorandum of fact and law: Canada (Attorney General) v. Impex Solutions Inc., 2020 FCA 171, [2020] CarswellNat 4332 at para. 37; Keurig Canada Inc. v. Canada (Border Services Agency), 2022 FCA 100, [2022] CarswellNat 1814 at para. 17 [Keurig].
[14] In the case at bar, it is very clear from the notice of appeal and from the appellant’s factum that the substance of what is being raised is best characterized as an issue of law and revolves around the proper interpretation of the Schedule to the Act, and more particularly the interpretation of headings 25.17 and 68.02. Indeed, much of the arguments turn on the various processes to which goods can be subjected without being excluded from Chapter 25, and on the distinction between "“polishing”" and "“levigating”", which is clearly a question of law. As for the alleged absence of any supporting evidence, it has often been characterized as an error of law: see Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161, [2021] CarswellNat 2923, at para. 25. I will therefore review the decision of the CITT on the correctness standard. . Covenoho v. HomeLife Response Realty Inc.
In Covenoho v. HomeLife Response Realty Inc. (Div Court, 2022) the Divisional Court demonstrated the sometimes complexity of the standards of review that can apply to the separate issues of an appeal case:Issue #1- Standard of Review
[26] Counsel for Right at Home has referenced the principles for appellate review as set out in Housen v. Nikolaisen 2002 SCC 33. On a question of law, the standard of review is correctness. On questions of fact, the standard of review is palpable and overriding error. Finally, on questions of mixed fact and law, the standard of review lies upon a spectrum.
[27] The Deputy Judge was required to interpret an offer to purchase in light of the specific factual matrix that existed in this case, including the Appellant’s Independent Salesperson’s Agreement. This is, at most, a contractual interpretation case. The standard of review to be adopted in reviewing the interpretation of a contract was set out by the Supreme Court of Canada in Saatva Capital v. Creston Moly 2014 SCC 53, [2014] 2 S.C.R. 633. In that decision, Rothstein J. concluded (at para. 50) that contractual interpretation involved issues of mixed fact and law. Rothstein J. went on to observe (at para. 53) that it might be possible to identify an extricable question of law in interpreting a contract. However, those types of extricable questions will be rare.
[28] In this case, the Deputy Judge’s decision on the interpretation of the effect of the offer to settle appears to lie somewhere along the spectrum. It might be possible to identify different portions of the Deputy Judge’s decision that required this Court to apply different standards of review. There is also an interesting issue about the standard of review that should be applied on a Rule 12.02 motion as those motions permit the Deputy Judge to make findings of fact but are not a full trial. As noted in Van de Vrande v. Butkowsky 2010 ONCA 230, a Rule 12 motion is situated between a Rule 20 and a Rule 21 motion under the Rules of Civil Procedure.
[29] Determining those questions is not necessary, however, as I have concluded that the Deputy Judge’s decision is correct and that the appeal is devoid of any merit in all respects. . 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi
In 1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi (Div Ct, 2021) the Divisional Court set out examples of 'extricable question of law' drawn from mixed fact and law issues:[29] More difficult are questions of mixed fact and law, which involve the application of a legal standard to a set of facts. Generally, the standard of review is palpable and overriding error. But where there is an extricable question of law, such as a where the decision-maker applies an incorrect standard, fails to consider a required element of a legal test or makes a similar error in principle, then the error is properly characterized as an error of law and the applicable standard of review is correctness. See Housen, para. 36. . Neptune Wellness Solutions v. Canada (Border Services Agency)
In Neptune Wellness Solutions v. Canada (Border Services Agency) (Fed CA, 2020) the Federal Court of Appeal discussed the nature of an 'extricable question of law embedded in a question of mixed fact and law', for standard of review purposes:[16] The Court must examine the specific grounds of appeal to ensure they in fact raise a question of law, and not questions of fact or of mixed fact and law masquerading as questions of law. The challenge lies in those cases where there is an extricable question of law embedded in a question of mixed fact and law. Guidance as to how to discern questions of law from a question of mixed fact and law is found in the decision of this Court in Canadian National Railway v. Emerson Milling Inc., 2017 FCA 79 at paras. 24-28, [2018] 2 F.C.R. 573, where the Court provided examples of what constitutes an extricable question of law embedded in a question of mixed fact and law:26 […] Extricable questions of law/legal standards are best regarded as questions of law of the sort intended by Parliament to be reviewed by this Court under subsection 41(1). In a number of cases, this Court determined appeals where extricable questions of law/legal standards (in addition to other legal and jurisdictional questions) were present:
• Canadian National Railway v. Canadian Transportation Agency, 2010 FCA 65, [2011] 3 F.C.R. 264 (F.C.A.) (CN 2010) and Canadian National Railway v. Canadian Transportation Agency, 2008 FCA 363, 383 N.R. 349 (F.C.A.) (CN 2008). What matters fall into certain defined terms in the Act, triggering the revenue cap in the Act? The extricable legal question was the definition of the defined terms in the Act.
• Dreyfus, above at para. 18. Two issues were raised that involve extricable questions of law, namely statutory interpretation. Does the "evaluation approach," a methodology adopted by the Agency for deciding questions under sections 113-116, deviate from the proper interpretation of the sections? Did the Agency fail to consider matters that the statute requires it to consider?
• Canadian National Railway v. Richardson International Ltd., 2015 FCA 180, 476 N.R. 83 (F.C.A.). Do the facts of the case constitute a "line of railway" and a "connection" for the purposes of triggering the carrier's interswitching obligations? The extricable question of law was the meaning of these terms.
• Canadian National Railway v. Viterra Inc., 2017 FCA 6 (F.C.A.). On the facts, were the obligations of the carrier under section 113 triggered? Was the carrier's rationing methodology a confidential contract under subsection 113(4) of the Act? [17] More recently, in Bell Canada v. British Columbia Broadband Association, 2020 FCA 140 at paras. 49-51, the Court noted that a question of law may also be factually infused, as in the case of procedural fairness. In all cases, it is the true substance of the question on appeal that governs, and not the form by which it is expressed. Examination of the notice of appeal and the memoranda of fact and law assist in determining the essential character of the issue.
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