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Appeals - Standard of Review (SOR) - When Fact Error is Legal ErrorThere 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.
MORE CASES
Part 2
. Telan v. Elm Place
In Telan v. Elm Place (Div Court, 2023) the Divisional Court considers when a fact-related error can constitute an error of law:[17] The starting point is that where a tenant appeals an order of the Board on a question of fact or mixed fact and law, the Divisional Court does not have jurisdiction to hear the appeal: Devenne v. Sedun, 2020 ONSC 6141, at para. 26. There are limited circumstances in which findings of fact may give rise to an error of law for the purposes of appeal. These include, for example, if the decision-maker ignored items of evidence that the law required them to consider: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 41; Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337, at para. 28, aff’d 2022 ONCA 446, 25 C.C.L.I. (6th) 1, leave to appeal granted, [2022] S.C.C.A. No. 310. 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, at paras. 25, 29; Yatar, at para. 28. . Sparks v. Director of the Ontario Disability Support Program
In Sparks v. Director of the Ontario Disability Support Program (Div Court, 2023) the Divisional Court cited 'inconsistent fact findings' as an error of law, here findings regarding the issue of non-compliance with medical treatment:[40] Here, the SBT appears to have inferred that Sparks could stop using marijuana but chose not to do so, and to have inferred that because of that choice his impairments were not substantial. This is stereotypical reasoning, inconsistent with SBT jurisprudence, and an error in law.
Issue 3: The SBT based its decision on contradictory determinations
[41] This issue also arises from the manner in which the SBT dealt with the appellant’s substance use disorder. At para. 19 of the SBT’s decision, the tribunal found that Sparks’ impairments were not “substantial ... because the Appellant was not in full compliance with treatment prescribed”, i.e., to cease using marijuana as his physician had recommended. But at para. 22 of the decision, the SBT held that he was not substantially impaired because he was able to overcome an addiction to Percocet with the use of suboxone, leading to the conclusion, at para. 23, that Sparks’ “extensive use of cannabis” weighed against a finding of substantial impairment. In other words, according to the SBT, Sparks’ impairments were not substantial because he was not compliant with treatment for marijuana, and because he was compliant with treatment for Percocet. Such inconsistent findings are an error of law: R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291, at para. 50; Trajkovich v. Ontario (Minister of Natural Resources), 2009 ONCA 898, O.J. No. 5466, at para. 18. . Sparks v. Director of the Ontario Disability Support Program
In Sparks v. Director of the Ontario Disability Support Program (Div Court, 2023) the Divisional Court considered an ODSP 'person with a disability' (PWD) appeal, which was argued (and allowed) on grounds that "the SBT ignored or misapprehended evidence ... engaged in discriminatory reasoning, ... based its decision on contradictory reasoning, and that it failed to apply the correct test of considering the “whole person” in assessing the substantiality of the appellant’s impairment":[18] ... A tribunal also errs in law when it improperly approaches the evidence, such as by misapprehending evidence, ignoring relevant evidence, or relying on irrelevant evidence or irrelevant factors in reaching its decision: Filipska et al v. Ministry of Community and Social Services, et al., 2017 ONSC 5462, O.J. No. 4814, at para. 7. A tribunal does not err in law, however, when it has considered the relevant evidence but the court disagrees with the weight it gave to the evidence in reaching its decision; that would be a question of fact.
....
[29] The SBT did, very briefly, refer the appellant’s evidence of his anxiety at paras. 15 and 17 of the decision. However, it cannot be said, as the respondent submits, that the SBT was weighing competing evidence, as there was no competing evidence. In my view, these conclusions can only have been reached by the SBT because it either ignored the appellant’s evidence, failed to appreciate it, or fundamentally misapprehended it. As discussed above, and as this court has stated in other decisions involving appeals from the SBT, the tribunal errs in law when it disregards, misapprehends, or fails to appreciate relevant evidence: Charron v. Director of the Ontario Disability Support Program, 2019 ONSC 2747, O.J. No. 2300, at para. 12; Jennings v. Minister of Social Services of Ontario, 2015 ONSC 6689, O.J. No. 5603, at para. 41; Housen, at para. 46; Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337, at para. 28, appeal dismissed, 2022 ONCA 446, O.J. No. 2602, leave to appeal to SCC granted, 2023 CanLII 17178 (SCC).
[30] The SBT’s finding on this issue went to the heart of the decision, as it then concluded that there was a “significant conflict between the IEWS and the Appellant’s testimony.” This so-called conflict was never explained, yet it led to the finding that the “ratings are less reliable” and therefore the appellant had not discharged his onus “of demonstrating that it is more likely than not that he experienced substantial impairment.” If there was a conflict, the SBT ought to have explained it, and explained why it preferred the appellant’s testimony over the medical reports. That would have been weighing the evidence. But instead, the tribunal said there was “no indication” from his testimony to support the ratings and did not weigh the evidence at all. . 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. . Nguyen v Economical Mutual Insurance Company
In Nguyen v Economical Mutual Insurance Company (Div Court, 2023) the Divisional Court held that when a fact-finding was made without evidence, that it constituted an error of law:[17] Given this, I find that the LAT made two errors of law in its decision. First, it made a finding, without evidence, on a material fact, namely that Ms. Nguyen received the March 13 denial letter on its date. In Drewlo Holdings v. MPAC, 2023 ONSC 1466 (Div. Ct.), the Divisional Court cited its decision in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, where, at para. 28, the Court sets out the circumstances under which a finding of fact can constitute an error of law. One such circumstance is when a finding of fact on a material point is based on no evidence. . Drewlo Holdings v. MPAC
In Drewlo Holdings v. MPAC (Div Court, 2023) the Divisional Court, in considering what constituted a legal error for purposes of a leave for appeal motion, cited a Yatar quote supporting the proposition that some fact errors as so serious that they amount to errors of law:[28] In Yater [sic] v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div.Ct.), Kristjanson J. stated at para. 28:[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 or 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] An important question of law meriting the attention of the Divisional Court must transcend the interests of the parties before the court. For an issue to be considered sufficiently important, it must engage matters of general interest to the public and litigants before the Board and go beyond the narrow immediate concerns of the parties (see: The Kensington Foundation v. MPAC, 2013 ONSC 1799 (CanLII)). . Linhares v. Rahman
In Linhares v. Rahman (Div Court, 2023) the Divisional Court considers where fact error is so serious as to constitute legal error, here in a case involving an RTA s.210 appeal which are heard on 'questions of law only':[8] Section 210 of the RTA provides a statutory right to appeal a decision of the LTB, but only on a question of law. An appeal that fails to raise a question of law is manifestly devoid of merit and may properly be quashed on a motion: Thompson v. Parish of Hastings, 2013 ONSC 6829, at para. 30; White Spruce Apartments v. Anne Deschenes, 2016 ONSC 5058, at paras 10-12.
[9] In Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, at para. 28, this court explained what constitutes a question of law in the context of 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). . Amadiegwu v. Aviva General Insurance Company
In Amadiegwu v. Aviva General Insurance Company (Div Court, 2023) the Divisional Court implicitly identifies some situations where an error of fact constitutes an error of law:(2) The jurisdiction of this court is to intervene by way of appeal only to correct an error of law.[1]
(3) We are all of the view that no extricable question of law was identified by the Appellant. There was no finding of fact by the LAT which was unsupported by the evidence or was based on an “irrational inference.” The Appellant testified for a full day before the Adjudicator and the Adjudicator was entitled to decide if the Appellant had satisfied the onus of proving his case as well as whether or not to give any weight to the opinions of the experts who testified. . R. v. Sparks-MacKinnon
In R. v. Sparks-MacKinnon (Ont CA, 2022) the Court of Appeal considered the role of an appeal court regarding fact-findings:[19] The Crown’s submissions invite this court to reweigh the relevant considerations on appeal. That is not our role. Appellate courts may not translate objection to a trial judge’s factual findings and inferences into legal errors: R. v. George, 2017 SCC 38, 349 C.C.C. (3d) 371, at para. 17; R. v. Javanmardi, 2019 SCC 54, [2019] 4 S.C.R. 3, at para. 42. The law leaves the assignment of weight to the relevant considerations to the trier of fact. . 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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