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Appeals - Standard of Review (SOR) - When Fact Error is Legal Error

There was, and still is apparently after Vavilov, a principle that a fact error - if 'bad enough' (my term) - can constitute a legal error. This seems unnecessary with 2019 Vavilov's 'palpable and overriding error' standard for fact errors, but I suspect it's used to try and get around privative-type restrictions which limit appeals to 'questions of law' [eg. RTA 210], and thus - superficially at least - prohibit fact and mixed fact-law appeals altogether.

. McKnight v. Kirk

In McKnight v. Kirk (Div Court, 2022) the Divisional Court considered when a fact error is a legal error:
[16] In Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), aff’d 2022 ONCA 446, at para. 28, Kristjanson J. explained the scope of review on a statutory appeal as follows:
On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless 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. 25 and 29. 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 at paras. 24-25).
. Gore v. Rusk

In Gore v. Rusk (Div Ct, 2022) the Divisional Court considered the meaning of error of law for standard of review purposes, including when fact errors rise to the level of legal errors:
[30] In its decision in Yatar v. TD Insurance Meloche Mennox, 2021 ONSC 2507 (Div. Ct.) this Court described an error of law in this context, as follows:
On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless 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. 25 and 29. 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 at paras. 24-25).
. Bayford v. Boese

In Bayford v. Boese (Ont CA, 2021) the Court of Appeal held that a serious misapprehension of evidence that is 'palpable and overriding' amounts to an error of law:
[28] A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. Doherty J.A. noted, at p. 218, that most errors that constitute a misapprehension of evidence will not be regarded as involving a question of law. However, appellate intervention is warranted where the misapprehension of evidence is palpable and overriding, such that it is plain to see or obvious and goes to the very core of the outcome of the case: see Waxman v. Waxman, 2004 CanLII 39040, at paras. 296-97, leave to appeal refused, [2004] S.C.C.A. No. 291; Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447, 151 O.R. (3d) 609, at para. 125, leave to appeal refused, [2020] S.C.C.A. No. 409.
. Sharma v. Allstate Insurance

In Sharma v. Allstate Insurance (Div Ct, 2022) the Divisional Court considered the standard of review when a statute restricts appeal to a question of law:
[12] This Court recently reviewed the circumstances that may give rise to an error of law. A helpful summary is set out in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.) at paras. 28 and 29:
28 On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker's assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A "misapprehension" of the evidence does not constitute an error of law unless 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. 25 and 29. 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 at paras. 24-25).

29 If the adjudicator considered all the mandatory or relevant evidence, but reached the wrong conclusion, then the error is one of mixed law and fact. If the adjudicator erred in applying the law (the correct legal standard) to the facts, that is a matter of mixed law and fact: Southam Inc. at paras. 41-42.
. Pinto v. Regan and White v. Regan

In Pinto v. Regan and White v. Regan (Div Ct, 2021) the Divisional Court considered what constitutes an error of law in an appeal:
[20] This court had an opportunity to further expand on what constitutes a question of law on a statutory appeal in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.). In that case, Kristjanson J. explained as follows, at para. 28:
On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless 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. 25 and 29. 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 at paras. 24-25).
[21] C. Boswell J. explained in Musse v. 6965083 Canada Inc., 2021 ONSC 1085, at para. 48, that an error of law also occurs 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.”
. Canada (Attorney General) v. Best Buy Canada Ltd.

In Canada (Attorney General) v. Best Buy Canada Ltd. (Fed CA, 2021) the Federal Court of Appeal explained how an egregious fact finding error may constitute a legal error:
[25] It is possible that a reviewable error of law may be extricated from a CITT finding of fact or application of law to the facts. For example, findings of fact must generally be supported by evidence, and making a finding of fact without any supporting evidence has often been characterized as an error of law, as opposed to one of fact: see e.g. Schuldt v. The Queen, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, 24 D.L.R. (4th) 453 at p. 604, cited with approval in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at para. 25. Thus an egregiously incorrect and unsupported finding of fact would be reviewable on a section 68 appeal.

[26] The CITT’s application of the relevant law may also be reviewable for an error of law if, in applying a legal rule or principle, it effectively misinterpreted or undermined the rule or principle. As the Supreme Court, Iacobucci J.A., put it in Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 39:
[…] After all, 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.
[27] In my view, this Court’s analysis of one of the issues raised in Impex illustrates this principle at work with regard to a CITT tariff classification decision. The case dealt with whether certain disposable shoe coverings were plastic or textile. This Court determined that, in misapplying the tariff schedule, the CITT had effectively erred in law. The relevant portion reads as follows:
[41] I am also satisfied that the appellant’s second ground of appeal, which concerns the Tribunal’s alleged failure to consider Note 1 to Chapter 39 upon determining that the goods in issue were articles of plastics, raises a question of law. The appellant contends that this Note directed the Tribunal to determine first whether the goods’ constituent material was a textile defined in Section XI, and more particularly a nonwoven defined in the Explanatory Notes to heading No. 56.03, before even considering whether Chapter 39 covered the goods in issue. In refusing or in neglecting to do so, the argument goes, the Tribunal overlooked a crucial analytical step prescribed by Note 1 to Chapter 39.

[42] This second issue requires the Court to determine whether Note 1 to Chapter 39 entails that the goods’ constituent material must be assessed in light of Section XI before turning to Chapter 39. In other words, the issue is whether the logic and structure of the Tariff Schedule require that a constituent material that combines textiles and plastics be assessed in a specific order. If they do, then it is an error of law not to assess that material in that order. This, again, is a question of law reviewable on a standard of correctness.
[28] Thus in Impex, the issue was not that the CITT allegedly erred in weighing certain factors against each other, or in unreasonably exercising a discretionary power conferred to it. Instead, this Court concluded that the CITT’s reasoning evidenced a misapprehension of the requirements of the tariff schedule—in other words, of the applicable law. Had this Court not intervened, the proper functioning of the legal rule—the interplay of the different sections of the tariff schedule involved—would have been undermined. The appellant successfully demonstrated that the CITT’s tariff classification decision on the merits raised an extricable question of law, reviewable on a section 68 appeal.


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