Simon's Megalomaniacal Legal Resources

Appeal - SOR - When Fact Error is Legal Error (2)

. Pourkhodayar v. The Personal Insurance Company

In Pourkhodayar v. The Personal Insurance Company (Div Court, 2024) the Divisional Court allowed a LAT SABS appeal/JR, here where the applicant "was denied on the basis that she had not been involved in an “accident” as defined in s. 3(1)".

Here the court considered the appellate SORs of 'questions of law', and where fact errors can constitute legal errors. The case is interesting for it's implicit treatment of legal errors in a JR context as having a correctness SOR, bot a reasonableness:

Standard of Review

[3] The appellate standard of review applicable to questions of law was recently summarized in Davis v. Aviva General Insurance Co., 2024 ONSC 3054 (Div. Ct.):

50. The standard of review on appeal limited to questions of law is one of correctness: Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37; Madore v. Intact Insurance Co, 2023 ONSC 11 (Div. Ct.), at para. 23.

51. Questions of law are generally questions about whether the correct legal test was applied, or an approach prescribed by statute was follows. In contrast, questions of fact are questions about what actually took place between the parties. Questions of mixed fact and law are questions which involve applying a legal standard to a set of facts: Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, at para. 43; Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 2 S.C.R. 748, at para. 35.

52. 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 (Div. Ct.), aff’d 2022 ONCA 446, reversed on other grounds, 2024 SCC 8, 489 D.L.R. (4th) 191. In that case, Kristjanson J. of this court explained as follows, 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 the evidence, may give rise to an error of law alone for the purposes of the 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 to not give rise to a 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).

[4] On questions of fact or mixed law and fact in an application for judicial review, the standard of review of an administrative tribunal’s decision is reasonableness. Reasonableness is concerned with the existence of justification, transparency, and intelligibility within the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

. Metropole Management (Toronto) Corporation v. Aly

In Metropole Management (Toronto) Corporation v. Aly (Div Court, 2024) the Divisional Court cited fact situations which can constitute legal errors, here for SOR purposes:

[18] There are very few circumstances in which the Board’s factual findings or assessments of the evidence will amount to an error of law. For example, challenges to the sufficiency of the evidence or to the weight given to the evidence do not raise questions of law. On the other hand, if the Board made a finding of fact for which there is no supporting evidence, that would be a legal error: R. v. J.M.H., 2011 SCC 45, at para. 25. Similarly, it would also be an error of law for the Board to make a finding of fact based solely on irrelevant evidence or to make an irrational inference from the evidence.

. 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.

. 1814219 Ontario Inc. v. 2225955 Ontario Ltd.

In 1814219 Ontario Inc. v. 2225955 Ontario Ltd. (Div Court, 2024) the Divisional Court noted where fact-errors may constitute legal errors:

[25] The parties agree on the applicable standard of review on this appeal. The court will intervene on an appeal from an order of a judge only where the judge made either an error of law, or a palpable and overriding error of fact or mixed fact and law: see Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, 211 DLR (4th) 577 at paras. 1–5, 10, 25. For an error of law, the standard is “correctness”. An error is "palpable" if it is "clear to the mind or plain to see" and "overriding" if it "discredits the result." The Ontario Court of Appeal considers the following to be examples of errors in the fact-finding process:

(a) a failure to consider relevant evidence; (b) misapprehension of relevant evidence; (c) consideration of irrelevant evidence; (d) a finding that had no basis in the evidence; and (e) a finding which amounts to speculation rather than legitimate inference.

. Fuamba et al. v. Irving et al.

In Fuamba et al. v. Irving et al. (Div Court, 2024) the Divisional Court allowed an appeal is a messy real estate transaction that in part had a fresh tenancy aspect (though rent amount was ambiguous) and ended up before the LTB on non-payment issues. The case is interesting as this court 'kicked' it all back to the Superior Court under the RTA s.202(1) ['Real Substance of Transaction'] and s.207(2) ['Superior Court Jurisdiction'] provisions.

Here the court cites a Saskatchewan case where fact issues may constitute 'questions of law':

[33] As set out in Murphy v. Saskatchewan Government Insurance, 2008 SKCA 57, 310 Sask. R. 149, at para. 5:

Since the right of appeal is confined to a question of law, neither the right of appeal nor the jurisdiction of the Court extends to a finding of fact. However, a finding of fact may be grounded in an error of law, as will be the case, for example, when a finding: (a) is based on no evidence; (b) is made on the basis of irrelevant evidence or in disregard of relevant evidence; or, (c) is based on an irrational inference of fact. See: P.S.S. Professional Salon Services Inc. v. Saskatchewan Human Rights Commission et al., 2007 SKCA 149, (2007), 302 Sask. R. 161 at paras. 60–65 (application for leave to appeal to S.C.C. filed February 13, 2008). The right of appeal, of course, extends to such errors of law.

. R. v. Attard

In R. v. Attard (Ont CA, 2024) the Ontario Court of Appeal considered Charter s.8 ['search and seizure'] and s.24(2) ['exclusion of evidence'], here while assessing a CCC 489 issue regarding the seizure of a car's airbag deployment data in a Crown appeal.

Here the court considers CCC 676(1)(a), where Crown appeals are limited to 'questions of law':

VII. THE STANDARD OF REVIEW

[43] The Crown’s ability to appeal an acquittal is circumscribed by s. 676(1)(a) of the Criminal Code, which limits the appeal to an error involving “a question of law alone”. Limiting the scope of Crown appeals of acquittals is fundamental to the core tenets of our legal system: R. v. Hodgson, 2024 SCC 25, at paras. 22, 26 to 31. Exceptionally, a trial judge’s alleged shortcomings in assessing the evidence may constitute an error of law: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, affirmed in Hodgson, at para. 34. This may occur when a trial judge assesses the evidence based on a wrong legal principle, makes a finding of fact for which there is no evidence, or fails to consider all of the evidence on the ultimate issue of guilt or innocence: Hodgson, at para. 35.

[44] Moreover, for a Crown appeal to succeed, the Crown must show that the error of law “might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal”: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14.

. R. v. Hodgson [IMPORTANT]

In R. v. Hodgson (SCC, 2024) the Supreme Court of Canada allows an appeal restoring a criminal acquittal, here considering the meaning of the widely-used concept of 'question of law' [used here in the Crown appeal limitation of CCC 676(1)(a)]:

(3) Defining the Scope of the Crown’s Limited Right of Appeal

[32] The history and rationale of s. 676(1)(a) is important for understanding the purpose and scope of the Crown’s limited right of appeal and helps answer “the vexed question of what constitutes, for jurisdictional purposes, an error of law alone” (see R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 24). In Biniaris, this Court held that a “question of law alone” is “used in contrast to the right of the accused to appeal both on questions of law, questions of fact, and questions of mixed fact and law” (para. 30). The Court declined the invitation to distinguish between a “question of law alone” and a “question of law”, holding that there is “nothing different” between them and that both terms must receive the same interpretation (para. 31).

[33] Consequently, the scope of the Crown’s right of appeal of an acquittal depends on what qualifies as a legal question. This assessment will generally turn on the character of the alleged error, rather than on its severity (R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 17). A legal question generally flows from an accepted or uncontested factual situation; the appellate court can then reach a purely legal conclusion drawn from the evidence without calling into question the trial judge’s evaluation of the evidence (M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2023 (30th ed. 2023), at para. 51.55). Clear examples of legal questions which do not depend on the facts of a given case include, for instance, statutory interpretation, the scope of a constitutional right, and the definition of the essential elements of an offence (para. 51.58).

[34] In other situations, drawing the line between questions of law and questions of fact or of mixed fact and law can become more challenging. This is often the case when the alleged error concerns a trial judge’s assessment of the evidence. As this Court explained in R. v. Chung, 2020 SCC 8, [2020] 1 S.C.R. 405, “[a]n appealable error must be traced to a question of law, rather than a question about how to weigh evidence and assess whether it meets the standard of proof” (para. 10 (citations omitted)). There are, however, situations in which a “trial judge’s alleged shortcomings in assessing the evidence constitute an error of law giving rise to a Crown appeal of an acquittal” (J.M.H., at para. 24).

[35] In J.M.H., the Court identified four non-exhaustive such situations:

1. Making a finding of fact for which there is no evidence — however, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule;

2. The legal effect of findings of fact or of undisputed facts;

3. An assessment of the evidence based on a wrong legal principle;

4. A failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence.

[36] Even if the Crown is able to point to an error of law, acquittals are not overturned lightly (see R. v. Cowan, 2021 SCC 45, at para. 46). The Crown must also convince the appellate court, to a reasonable degree of certainty, that the verdict of acquittal would not necessarily have been the same had the error not occurred (Graveline, at para. 15; R. v. Sutton, 2000 SCC 50, [2000] 2 S.C.R. 595, at para. 2). While the Crown need not persuade the appellate court that the verdict would necessarily have been different, its burden in this respect is a very heavy one (see Graveline, at paras. 14-15 and 19, quoting R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 374; see also Sutton, at para. 2).

. Davis v. Aviva General Insurance Co.

In Davis v. Aviva General Insurance Co. (Div Court, 2024) the Divisional Court allowed an insured's LAT SABS appeal, here where the insurer paid several years of claims but then successfully denied coverage on the basis that there was no 'accident'.

Here the court considers the SOR for questions of law, including both misapprehensions of evidence and where fact errors can constitute errors of law:

[51] Questions of law are generally questions about whether the correct legal test was applied, or an approach prescribed by statute was followed. In contrast, questions of fact are questions about what actually took place between the parties. Questions of mixed fact and law are questions which involve applying a legal standard to a set of facts: Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, [2017] 1 S.C.R. 688, at para. 43; Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.

[52] 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.), aff’d 2022 ONCA 446, reversed on other grounds, 2024 SCC 8, 489 D.L.R. (4th) 191. In that case, Kristjanson J. of this court explained as follows, 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 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).

[53] The appeal turns on whether the LAT applied the correct law in respect to each issue, or otherwise made an error of law on applying the relevant test.