Simon's Megalomaniacal Legal Resources

Appeals - Standard of Review (SOR) - Error of Fact

. R. v. Kruk

In R. v. Kruk (SCC, 2024) the Supreme Court of Canada considers the role of 'common sense assumptions' in assessing testimonial credibility, and also the location of credibility findings as 'fact-findings' - thus falling under the 'palpable and overriding' standard of review:

[72] It is widely recognized that testimonial assessment requires triers of fact to rely on common-sense assumptions about the evidence. In R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, [2020] 3 S.C.R. 780, the Alberta Court of Appeal observed that triers of fact may rely on reason and common sense, life experience, and logic in assessing credibility. In R. v. R.R., 2018 ABCA 287, 366 C.C.C. (3d) 293, the same court held that triers of fact “must invariably fall back on their common sense, and their acquired knowledge about human behaviour in assessing the credibility and reliability of witnesses” (para. 6). Finally, in R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, this Court considered that the life experience of trial judges — though of course not a substitute for evidence, and subject to appropriately circumscribed limits — “is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility”, and assists with a “myriad of decisions arising during the course of most trials” (para. 13). Reasoning about how people generally tend to behave, and how things tend to happen, is not only permissible, it is often a necessary component of a complete testimonial assessment.

[73] In turn, common-sense assumptions necessarily underlie all credibility and reliability assessments. Credibility can only be assessed against a general understanding of “the way things can and do happen”; it is by applying common sense and generalizing based on their accumulated knowledge about human behaviour that trial judges assess whether a narrative is plausible or “inherently improbable” (R. v. Kiss, 2018 ONCA 184, at para. 31 (CanLII); R. v. Adebogun, 2021 SKCA 136, [2022] 1 W.W.R. 187, at para. 24; R. v. Kontzamanis, 2011 BCCA 184, at para. 38 (CanLII)). Common sense underpins well-established principles guiding credibility assessment — including the now-universal idea that witnesses who are inconsistent are less likely to be telling the truth — and assists in assessing the scope and impact of particular inconsistencies. Reliability also requires reference to common-sense assumptions about how witnesses perceive, remember, and relay information, invoking generalizations about how individuals tend to present information that they are remembering accurately and completely, as opposed to matters about which they are unsure or mistaken. A trial judge may, for example, infer that a witness was credible yet unreliable because they appeared sincere but displayed indicia that tend to suggest an unclear or uncertain memory (e.g., equivocation, phrases such as “hmm . . . let me see”, long pauses, or failure to provide much detail).

....

[81] Assessments of credibility and reliability can be the most important judicial determinations in a criminal trial. They are certainly among the most difficult. This is especially so in sexual assault cases, which often involve acts that allegedly occurred in private and hinge on the contradictory testimony of two witnesses. The trial judge, while remaining grounded in the totality of the evidence, is obliged to evaluate the testimony of each witness and to make determinations that are entirely personal and particular to that individual. Credibility and reliability assessments are also context-specific and multifactorial: they do not operate along fixed lines and are “more of an ‘art than a science’” (S. (R.D.), at para. 128; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621).[4] With respect to credibility in particular, while coherent reasons are crucial, it is often difficult for trial judges to precisely articulate the reasons why they believed or disbelieved a witness due to “the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (Gagnon, at para. 20; see also R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 28; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 81). The task is further complicated by the trial judge’s ability to accept some, all, or none of a witness’s testimony.

[82] The governing standard of review applicable to findings of credibility and reliability is well established: absent a recognized error of law, such findings are entitled to deference unless a palpable and overriding error can be shown (Gagnon, at para. 10, citing Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 74). Credibility and reliability findings typically do not engage errors of law, as at their core they relate to the extent to which a judge has relied upon a particular factor and how closely that factor is tied to the evidence. Although such findings may be overturned on correctness if errors of law are disclosed, in most cases it is preferable to review them using the nuanced and holistic standard of palpable and overriding error — which defers to the conclusions of trial judges who have had direct exposure to the witnesses themselves.

[83] Trial judges have expertise in assessing and weighing the facts, and their decisions reflect a familiarity that only comes with having sat through the entire case. The reasons for the deference accorded to a trial judge’s factual and credibility findings include: (1) limiting the cost, number, and length of appeals; (2) promoting the autonomy and integrity of trial proceedings; and (3) recognizing the expertise and advantageous position of the trial judge (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 12-18). In light of the practical difficulty of explaining the constellation of impressions that inform them, it is well-established that “particular deference” should be accorded to credibility findings (G.F., at para. 81). Appellate courts are comparatively ill-suited to credibility and reliability assessment, being restricted to reviewing written transcripts of testimony and often focussing narrowly, even telescopically, on particular issues as opposed to seeing the case and the evidence as a whole (Housen, at para. 14, citing R. D. Gibbens, “Appellate Review of Findings of Fact” (1991-92), 13 Advocates’ Q. 445, at p. 446).

[84] The unique nature of testimonial assessment also guides how reviewing courts approach their task on appeal. Appellate courts must be mindful of the acute practical difficulties trial judges face in articulating why a particular witness was believed or disbelieved, tasked as they are with interpreting the various impressions and inferences that arise from the evidence (Gagnon, at para. 20; see also R.E.M., at para. 28; G.F., at para. 81). An appellate court should examine a trial judge’s reasons as a whole and refrain from parsing their “individual linguistic components”, as such an invasive approach would “undermine the trial judge’s responsibility for weighing all of the evidence” (Gagnon, at para. 19; see also Housen, at para. 72; G.F., at para. 69; R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, at para. 33; R.E.M., at paras. 35 and 54). The need to review the entire record and for a full, flexible and functional approach when scrutinizing the findings of a trial judge is tied to the nature of the decision-making process at trial: reasons for judgment “are not intended to be, and should not be read, as a verbalization of the entire process engaged in by the trial judge in reaching a verdict” (R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 525).

[85] The palpable and overriding error standard strikes the appropriate balance between deference to the factual findings of the trial judge and the need for meaningful review of criminal cases on appeal. Although this standard is duly deferential to the trial judge’s unique vantage point and expertise, even under this more deferential standard, appellate courts must determine whether the trial judge’s findings on credibility and reliability are “the product of an evidence-based and context-specific assessment” of the witness’s testimony (R. v. Pastro, 2021 BCCA 149, 71 C.R. (7th) 296, at para. 67). Trial judges must “clearly articulat[e]” the basis for their assessments and point to “a nexus to the facts of the case” as opposed to relying on “assumptions about expected responses or conduct” (Tanovich, at p. 92). Yet, the proposed rule against ungrounded common-sense assumptions undercuts the rationale for the palpable and overriding error standard by inviting appeal courts to examine the specific language of particular common-sense reasoning and scrutinize it on a standard of correctness. The ensuing appellate review exercise quickly becomes highly interventionist, cumbersome, and almost entirely unpredictable.

[86] Invoking the proposed rule [SS: which was denied by the court], appellate courts have been invited to parse trial reasons, attack generic statements made in the course of credibility assessments, and frame any credibility findings based on human behaviour as impermissible stereotypes or common-sense assumptions untethered to evidence. In Perkins, Cepic, Roth, and J.C., the appeal courts quashed the convictions due to errors in the trial judges’ credibility assessments, concluding that the trial judges went beyond allowable common-sense inferences and engaged in reasoning not grounded in the evidence. In other cases, a review of the findings as a whole demonstrated that the trial judges had employed no unfounded assumptions and rather the credibility assessments had been conducted in relation to the parties and circumstances before the court. The jurisprudence in this area is variable, even volatile, and evinces the need for a more consistent approach to appellate review (see Perkins; Roth; Cepic; J.C.; see, contra, Pastro, at paras. 68-69; R. v. Greif, 2021 BCCA 187, at paras. 68-69 (CanLII); Adebogun; R. v. Al-Rawi, 2021 NSCA 86, 410 C.C.C. (3d) 385; R. v. K.B.W., 2022 SKCA 8; R. v. L.L., 2022 ONCA 50; R. v. Lapierre, 2022 NSCA 12; Kritik-Langer v. R., 2022 QCCA 657; R. v. Kavanagh, 2022 BCCA 225; R. v. D.B., 2022 SKCA 76, 415 C.C.C. (3d) 455; R. v. S.A., 2022 ONCA 642; R. v. S.M., 2023 ONCA 417).

[87] With respect, the Court of Appeal’s decision in Mr. Tsang’s case illustrates the microscopic form of appellate review this very Court has cautioned against. The Court of Appeal targeted specific word choices, approving certain formulations of the trial judge’s credibility findings while implying that even slightly different word choices would have been erroneous. For example, in holding that the trial judge did not rely on a prejudicial generalization in refusing to believe the complainant had physically expressed her interest in the accused on the dance floor, the court emphasized that the “trial judge did not conclude simply that [the idea] was ‘not capable of belief’” but that “it was not capable of belief in the circumstances” (para. 33 (emphasis in original)). Similarly, approving of the trial judge’s conclusion that it was unlikely the parties would have shared a drink because they were effectively strangers, the court held, “[i]mportantly . . ., the trial judge did not say [Mr. Tsang’s] evidence about sharing a drink was ‘unbelievable’, it was simply ‘unlikely’ to have occurred” (para. 40).

[88] The proposed rule also risks diverting the focus of the trial judge’s reasons on plausibility to issues of form over substance, creating a chilling effect against thorough and frank reasons. Under the rule, it would be permissible for a trial judge to find it implausible that x, y, or z would have occurred in the circumstances of the case — but it would be impermissible to plainly state the common-sense premise that underpins the finding of implausibility, for fear that an appellate court would deem that premise “ungrounded” in the evidence at trial. The unstated barometer underpinning plausibility is a generalized expectation about how events tend to unfold and how people tend to behave in particular situations, meaning that common-sense assumptions represent a necessary measuring stick against which to assess the plausibility of a narrative. Yet the proposed rule leads judges into a catch-22, as the judge’s reasons (read functionally and contextually) must provide both the “what” and the “why” (G.F., at paras. 68-70).

[89] This form of appellate review directly cuts against established principles and leads to arbitrariness in outcomes. It does not, in my respectful view, advance the interests of justice. To the extent trial judges are the ones who have heard the evidence, they are best placed to make the complex and multifaceted factual findings that culminate in fair and nuanced credibility assessments. Deference to trial judges’ assessments of that evidence and the words they choose to describe it is warranted.

[90] In general, the introduction of new errors of law has the potential to upset the established balance in relation to credibility and reliability findings. Review based on an error of law may invite a “yes-no” answer measured on a standard of correctness, which opens the door to undue scrutiny of matters properly before the trial judge. To some extent, the materiality inquiry associated with the rule against ungrounded common-sense assumptions — under which the appellant must show that such reasoning “mattered in arriving at the impugned factual finding” (J.C., at para. 100) — mitigates the categorical nature of an error of law. However, in my view, it remains preferable to assess whether an error has been made in the first place based on the palpable and overriding standard. An overriding error is necessarily material because it must be shown to have affected the trial judge’s decision — but it is important to emphasize that an overriding error affects not just an isolated finding of fact, which may or may not have played a role in reaching the outcome, but the trial judge’s decision as a whole. It is not enough for an appellant asserting palpable and overriding error to pull at leaves and branches and leave the tree standing; the entire tree must fall (South Yukon Forest Corp. v. Canada, 2012 FCA 165, 431 N.R. 286, at para. 46, cited in Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 38, and Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 116).

[91] Overall, the palpable and overriding error standard fosters an appropriately holistic approach to appellate review. As compared to the invasive method associated with the proposed error of law, palpable and overriding error is far better attuned to the deference rightly afforded to trial judges’ factual findings, including with respect to credibility and reliability findings. There is simply no need for this Court to endorse a departure from that established approach — let alone one so substantial — by recognizing a new error whose far-reaching repercussions would reverberate across the entire criminal law.

. Zarei v. Afsharian

In Zarei v. Afsharian (Div Court, 2023) the Divisional Court considered (and dismissed) an RTA landlord's appeal, here where the court dismissed a procedural fairness argument solely on the grounds that it involved a pure fact issue. The court reasoned that under RTA s.210 the Divisional Court only had appellate jurisdiction over 'questions of law' - even though it expressly acknowledged that the SOR for fairness was 'correctness'.

The case raises what I think are novel issues as - prior to it - the court did not defer to the tribunal below at all, taking the view that procedural fairness issues are themselves legal issues, not being entitled to any deference on an appeal [Lacroix v. Central-McKinlay International Ltd. (Div Ct, 2022), para 9; Lengyel v. The Licence Appeal Tribunal et al. (Div Court, 2023), para 16; Peel Standard Condominium Corporation No. 779 v. Rahman (Div Ct, 2021), para 18]:

[2] An appeal to this court from a decision of the LTB is available but only in respect to questions of law: Residential Tenancies Act, 2006, SO 2006, c. 17, s.210. The standard of review on questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Issues of procedural fairness – where they are matters of legal standards – are likewise decided on a standard of correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29.

[3] The primary issue raised by the appellants is a question of procedural fairness – they say that they did not receive notice and thus did not have an opportunity to participate in the hearing. A question of procedural fairness is reviewed in this court on a standard of correctness. However, in this case the issue of procedural fairness raised by the appellants turns solely on a finding of fact by the Board: the Board found that the appellants received notice of the hearing. Given that finding, which is not subject to appeal in this court, no issue of procedural fairness arises, and for this reason the appeal must be dismissed.

[4] Procedural fairness, and the LTB’s own practices and procedures, require that parties be given notice of a hearing. In this instance, notice was sent to Mr Zarei’s email address. In the request for reconsideration, the appellants argued that Mr Zarei did not receive the email until after the hearing had taken place. In its reconsideration decision, the LTB rejected Mr Zarei’s argument and found that he did receive the notice in a timely manner. This was a finding of fact, available to the LTB on the record before it on reconsideration, and this court has no jurisdiction to interfere with it.

. Creglia v. Mathews

In Creglia v. Mathews (Div Court, 2023) the Divisional Court considers an SOR issue:

[23] Findings of fact which support a legal available outcome are not subject to challenge on appeal on a question of law alone: Sandgecko Inc. v. Ye, 2020 ONSC 7245 (Div. Ct.) at para. 34.

. Aslam v Ontario College of Pharmacists

In Aslam v Ontario College of Pharmacists (Div Court, 2023) the Divisional Court found in favour of an appellant on rare witness credibility grounds:

[13] The Committee stated correctly the legal principles involved in assessing the credibility of witnesses. The Committee was entitled to believe all, part or none of the complainant’s evidence. It was not obliged to mention every item of evidence in its reasons. But the Committee made no reference to several important aspects of the evidence that had the potential to weigh heavily on the overall credibility and reliability of the complainant. We do not infer that the Committee simply thought them to be unimportant, because many of them were important enough for the Committee to decline to act on the complainant’s evidence with respect to most of the charges.

[14] Viewed as a whole the complainant’s evidence was self-contradictory and arguably bizarre at times. It was also contradicted by another employee whose evidence was accepted and by video surveillance evidence. She alleged that the appellant had sexually assaulted another employee, an allegation that the other employee denied occurred. She had a history of making serious allegations against fellow employees, allegations that were never substantiated. Rather than deal with these issues, it appears that the Committee compartmentalized the evidence charge by charge and omitted to consider it as a whole when determining the reliability of the complainant on the charges on which it found misconduct. That was an error. The concerns about the complainant’s reliability were concerns that went to her reliability as a whole, not just to her reliability when it came to one particular incident.

[15] The finding of misconduct is based entirely on the complainant’s evidence. The Committee’s approach to assessing her reliability was flawed. The verdict on the office incident, then, cannot stand. It must be tried again.

. RVR Concrete v. Windsor Wall Forming

In RVR Concrete v. Windsor Wall Forming (Div Court, 2022) the Divisional Court considered policy reasons for the deferential standard of review on fact-findings:

[29] In Kucyi v. Kucyi, as in other cases, our Court of Appeal provided an explanation of the rationale for why appellate courts ought to show deference to findings of fact made by the trial judge, as follows:

While counsel on an appeal rightly invite the court to carefully examine isolated parts of the evidence, it is the judge at first instance who saw and heard the whole of the narrative who is in the best position to make an assessment of whether an adjournment was sought. To paraphrase this court’s decision in Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765 (Ont. C.A.) at paras. 291-92, strong deference to the factual findings of the trial judge best strikes the balance between the goal of achieving individual justice and the need to preserve the overall effective administration of justice. Merely because an appellate court might view the evidence differently from the trial judge and make different factual findings is not a basis for concluding that the appellate court’s findings will be more accurate and its result more consistent with the justice of the particular case than the result achieved at trial. Thus, appellate courts must defer to all findings of fact drawn by the judge at first instance unless the court is satisfied that the finding was the product of a “palpable and overriding” error. That deference equally applies to inferences from the evidence: See L. (H.) v. Canada (Attorney General), 2005 SCC 25 (CanLII), [2005] 1 S.C.R. 401 (S.C.C.).[12]

. R. v. Panchal

In R. v. Panchal (Ont CA, 2022) the Court of Appeal cited the principle that credibility findings are accorded high deference on appeal:

[22] In R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81-82, the Supreme Court recently reiterated the long-standing principle that appellate courts ought to defer to trial judges on their credibility findings:

[81] … a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence.…Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt.…

[82] Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.…[Citations omitted.]

. Karia Estate v. Karia

In Karia Estate v. Karia (Ont CA, 2022) the Court of Appeal considered the standard of review for fact error:

[23] “Making a factual conclusion, of any kind, is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review” of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 24-25. An “appellate court will not interfere with the trial judge's findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”: L. (H.) v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55. ...

. Tokarz v. Selwyn (Township)

In Tokarz v. Selwyn (Township) (Ont CA, 2022) the Court of Appeal considered when an omission is material:

[46] An omission is a material error “if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion”: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 15; Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, 2019 SCC 28, [2019] 2 SCR 406, at para. 70.