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

. 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.


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