Simon's Megalomaniacal Legal Resources

Appeals - Standard of Review (SOR) - Extricable Issues of Law (2)

. BNSF Railway Company v. Greater Vancouver Water District

In BNSF Railway Company v. Greater Vancouver Water District (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal [under the Canada Transportation Act, s.41(1)], here from a CTA decision that "found the rerouting works suitable and authorized the District to construct and maintain them at the District’s cost".

Here the court considers samples of 'extricable questions of law' in an SOR context:

[166] .... Examples of extricable questions of law include the application of an incorrect principle; the failure to consider a required element of a legal test; the failure to consider a relevant factor; or a question regarding the formation of a contract: Sattva at para. 53, citing King v. Operating Engineers Training, 2011 MBCA 80 at para. 21.

. Wiener Städtische Versicherung AG Vienna Insurance Group v. Infrassure Ltd.

In Wiener Städtische Versicherung AG Vienna Insurance Group v. Infrassure Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from a trial addressing "the meaning and effect of a so-called “follow settlements” clause in a contract of reinsurance" in the context of a business interruption claim:

Here the court considered the role of 'extricable questions of law' in determining the appellate SOR:

[45] There are limited exceptions to this deferential standard. A correctness standard of review applies to “extricable questions of law” that arise in the interpretation process, such as “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”: Sattva, at paras. 53, 55. However, instances involving extricable questions of law will be “rare” and “uncommon”, since ascertaining the objective intention of the parties is an “inherently fact specific exercise”: Sattva, at para. 55; Corner Brook (City) v. Bailey, 2021 SCC 29, [2021] 2 S.C.R. 540, at para. 44.

. Pinnacle International (One Yonge) Ltd. v. Torstar Corporation

In Pinnacle International (One Yonge) Ltd. v. Torstar Corporation (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal, here in a sublease profit-sharing dispute.

The court considers the appellate SOR applicable to this lease-contract dispute, here involving a customized sub-lease:

V. Standard of Review

[51] The first, second, and fourth issues involve the interpretation of the Lease and the Boreal Sublease. As neither document is a standard form contract, this court must review the motion judge’s interpretation of those contracts in accordance with the dictates of Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 52-53. In Sattva, the Supreme Court of Canada explained that because the interpretation of a contract involves questions of mixed fact and law, absent an extricable question of law which attracts a correctness standard, the standard of review is palpable and overriding error: at paras. 50, 53. See also Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, 492 D.L.R. (4th) 389, at paras. 27-28.

[52] Extricable errors of law in contract interpretation include the application of an incorrect legal principle, the failure to consider a required element of a legal test, and the failure to consider a relevant factor: Sattva, at para. 53. This court has identified other extricable errors of law, such as the failure to properly, accurately, and fully consider the context in which a contract was made, and the failure to consider the contract as a whole by focusing on one provision without giving proper consideration to other relevant provisions: Fuller v. Aphria Inc., 2020 ONCA 403, 4 B.L.R. (6th) 161, at para. 50.

[53] The standard of review on the third issue, however, is correctness, because the question of which limitation period applies is a pure question of law: Northwinds Brewery Ltd. v. Caralyse Inc., 2023 ONCA 17, 53 R.P.R. (6th) 29, at para. 22. Thus, the motion judge must have correctly decided that the RPLA applies to the Claim. If not correct, this court must intervene and apply the correct limitation period.

. Achaia-Shiwram v. Intact Insurance Co.

In Achaia-Shiwram v. Intact Insurance Co. (Div Court, 2024) the Divisional Court dismissed a LAT SABS appeal, here for "no-fault accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”)" for "catastrophic psychological impairment".

Here the court equates 'extricable' errors of law contained in a mixed error of fact and law, with fact errors that amount to legal errors:

[19] There are limited circumstances in which findings of fact, or the adjudicator’s assessment of evidence, may give rise to an extricable error of law: see Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337 (Div. Ct), at para. 28, aff’d 2022 ONCA 446, rev’d on other grounds, 2024 SCC 8, 489 D.L.R. (4th) 191. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. However, a misapprehension of or failure to appreciate the evidence may constitute an error of law if the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 29, citing R. v Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 295. It is an error of law to make a finding of fact for which there is no supporting evidence: J.M.H, at para. 25, citing R. v. Schuldt, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, at p. 604. 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, 93 C.C.L.I. (5th) 228, at paras. 24-25.