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Appeal - SOR - When Fact Error is Legal Error (2). Best Buy Canada Ltd. v. Canada (Border Services Agency)
In Best Buy Canada Ltd. v. Canada (Border Services Agency) (Fed CA, 2025) the Federal Court of Appeal dismisses a joint appeal/JR application, here seeking to "set aside the decision of the Canadian International Trade Tribunal".
Here Stratas JA interestingly considers the Federal Court system's equivalent issue to the Ontario system's 'Yatar' recent dual appeal-JR procedure. He concludes that the federal system largely tolerates such a procedure, but that it is rare that it is tactically required [as most issues can be characterized as legal] - ending with (what I read as) a costs warning [para 16] against parties using it unnecessarily:[1] The appellant/applicant asks this Court to set aside the decision of the Canadian International Trade Tribunal dated November 8, 2023 in file AP-2022-015. It does so by way of an appeal on questions of law under section 68 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and a separate application for judicial review under subsection 28(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. For the following reasons, we will dismiss both with costs.
....
B. The separate judicial review
(1) Can a judicial review be brought in the face of a statutory appeal provision that restricts the grounds the Court can consider?
[8] There are many statutory appeal provisions that restrict an appellant to "“questions of law”" or "“questions of jurisdiction”" or impose a leave-to-appeal requirement, or some combination of these things: see, e.g., Canada Transportation Act, S.C. 1996, c. 10, s. 41(1); Broadcasting Act, S.C. 1991, c. 11, s. 31(2); Telecommunications Act, S.C. 1993, c. 38, s. 64(1); Competition Act, R.S.C. 1985, c. C-34, ss. 30.24(2) and 34(3); Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 68(1)(c). Can a judicial review be brought in the face of these statutory appeal provisions?
[9] This Court has given two answers to that question:(1) Statutory appeal provisions that impose restrictions do not prevent a party from bringing a judicial review as of right on any administrative law grounds: see Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161.
(2) Statutory appeal provisions sometimes restrict a court to considering "“questions of law”" or "“questions of jurisdiction”" or can require that the appellant obtain leave to appeal. Provided that the restriction furthers "“a pressing and valid government objective”" (legislation normally binding courts) and leaves the judiciary able to decide "“whether state action conforms with [the law,] the Constitution, and the requirement of fair and impartial administration of justice”", the restriction will be upheld and a separate judicial review disobeying the restriction will be precluded: Democracy Watch v. Canada (Attorney General), 2023 FCA 39 at para. 5. While courts can ignore total restrictions on review, such as those contained in a classic privative clause, they cannot ignore partial ones that are valid on the above principles: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 at paras. 102-103 (and the Supreme Court cases cited therein). [10] Speaking only for myself, I think the Best Buy decision overlooked the controlling authorities mentioned in the preceding paragraph. But multiple majorities of this Court have either approved Best Buy or left it in place: see Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375), 2023 FCA 93 at paras. 115-117; BCE Inc. v. Québecor Média Inc., 2022 FCA 152 at para. 58; Canada (Attorney General) v. Pier 1 Imports (U.S.), Inc., 2023 FCA 209; Democracy Watch v. Canada (Attorney General), 2024 FCA 158. This Court’s repeated affirmation of Best Buy outweighs the personal views of any individual judge: Janssen Inc. v. Canada (Attorney General), 2021 FCA 137; Miller, above. Thus, Best Buy is the law in this Court until the Supreme Court says otherwise. The Supreme Court has expressly left open whether Best Buy is valid: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191 at para. 50.
[11] But just because Best Buy says parties can bring a separate application for judicial review doesn’t mean they should. In fact, in most cases they shouldn’t. Why? Just about anything that can be raised in a separate application for judicial review can be raised in a statutory appeal where only "“questions of law”" can be raised:. Alleged legal errors by the administrative decision-maker, whether they be found in the Constitution, legislative provisions, common law principles or administrative law principles. This includes questions of law that are extricable from (i.e., taint or dominate) questions of mixed fact and law: Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573; Canadian National Railway Company v. Canada (Transportation Agency), 2016 FCA 266 at para. 22; Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151 at para. 15.
. Procedural fairness concerns: Emerson Milling at paras. 18-19.
. Sufficiency of reasons or inadequate reasons on a key point: Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 at paras. 21-33.
. Errors that seem factual but are really legal errors or failures to follow legal principles governing fact-finding. For example, a decision-maker that wrongly takes judicial notice (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458), wrongly finds facts without any supporting evidence (Canada (Border Services Agency) v. Danson Décor Inc., 2022 FCA 205 at para. 14), wrongly draws a factual inference or finds facts contrary to the law of evidence (e.g., Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161 and the cases cited therein; Garvey v. Canada (Attorney General), 2018 FCA 118 at para. 6), or wrongly finds facts contrary to a statutory provision (Walls v. Canada (Attorney General), 2022 FCA 47 at para. 41; Page v. Canada (Attorney General), 2023 FCA 169 at para. 79). [12] Sometimes parties bring applications for judicial review to get the Court to reweigh the evidence. But we never do that under the reasonableness standard: see, e.g., Pier 1 Imports at para. 45; and many other authorities.
[13] As for leave-to-appeal requirements in some statutory appeal provisions, they do not stop arguable issues from coming before the Court. Quite the opposite. If the issues are "“fairly arguable”", we grant leave: Emerson Milling at para. 56; Canadian Pacific Railway Co. v. Canada (Transportation Agency), 2003 FCA 271, [2003] 4 F.C.R. 558 at para. 17; and on the meaning of "“fairly arguable”", see Lukács v. Swoop Inc., 2019 FCA 145 at para. 15. No one has a right to bring or prosecute a case that is not "“fairly arguable”".
[14] Judicial reviews and statutory appeals are the same as far as administrative law remedies are concerned: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at paras. 139-142; and with specific regard to s. 52 of the Federal Courts Act, see Cathay Pacific Airways Limited v. Air Miles International Trading B.V., 2015 FCA 253 and Punniamoorthy v. Canada (Minister of Employment and Immigration) (1994), 1994 CanLII 10959 (FCA), 113 D.L.R. (4th) 663, 20 Admin. L.R. (2d) 73.
[15] In light of the above, this much is true: rare are the times a party really needs to bring a separate judicial review.
[16] A needless judicial review should never be brought. It subverts judicial economy, burdens the Registry, drives up costs, and undermines simplicity and efficiency in administrative law: Vavilov at para. 29; Pier 1 Imports at para. 51; Best Buy at para. 68. If brought, it should be immediately discontinued: Federal Courts Rules, S.O.R./98-106, Rule 165. If not discontinued, a respondent should move to dismiss it. And the Court, on its own motion, can dismiss it too: Dugré v. Canada (Attorney General), 2021 FCA 8 at paras. 19-24 and cases cited therein (plenary powers of the Court and Rule 74). If a separate judicial review has been brought and is truly needed, it must be consolidated with the statutory appeal under Rule 105. . R. v. Consolidated Homes Ltd.
In R. v. Consolidated Homes Ltd. (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown leave to appeal application (which would be the second appeal), here against an earlier appeal acquittal against a conviction under the Endangered Species Act.
Here the court considers the meaning of 'questions of law', although specific to this quasi-criminal context:[15] As Doherty J.A. noted in R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 48, “[i]t can be difficult to distinguish between errors of law alone and errors of mixed fact and law. At times, the distinction seems purely semantic”. In R. v. Ul-Rashid, 2013 ONCA 782, 309 C.C.C. (3d) 468, at para. 20, Weiler J.A. explained:[A] holistic approach should be taken to the leave requirements in POA matters. What constitutes a question of law must be considered concurrently with the requirement that it be essential that the matter be resolved in the public interest or for the due administration of justice. The two parts of the test for leave under s. 139 of the POA are inextricably linked: questions that raise issues requiring resolution in the public interest or for the due administration of justice can properly be viewed as raising questions of law. [16] Some guidance on the meaning of “question of law alone” can be found in the case law dealing with jurisdictional limits in criminal appeals. In R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 24-32, Cromwell J. explained that there are at least four established situations “when the trial judge’s alleged shortcomings in assessing the evidence constitute an error of law giving rise to a Crown appeal of an acquittal”, namely:i) When the trial judge makes a finding of fact for which there is no evidence;
ii) When the trial judge fails to give proper legal effect to findings of fact or to undisputed facts;
iii) When the trial judge assesses evidence based on a wrong legal principle; and
iv) When the trial judge fails to consider all of the evidence on the ultimate issue of guilt or innocence. [17] In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 19-27, the Supreme Court of Canada held further that when a criminal conviction is set aside by an appellate court on the basis that it is “unreasonable or cannot be supported by the evidence” pursuant to s. 686(1)(a)(i) of the Criminal Code, this decision is deemed to be a “question of law” for the purpose of determining whether the Crown has a further right of appeal. As Arbour J. explained at paras. 22-23, this rule is based on policy considerations, even though the question of whether a verdict is properly supported by the evidence will very often depend on the particular facts of that case:The sole purpose of the exercise here, in identifying the reasonableness of a verdict as a question of fact, law or both, is to determine access to appellate review. One can plausibly maintain, on close scrutiny of any decision under review, that the conclusion that a verdict was unreasonable was reached sometimes mostly as a matter of law, in other cases predominantly as a matter of factual assessment. But when that exercise is undertaken as a jurisdictional threshold exercise, little is gained by embarking on such a case-by-case analysis. Rather, it is vastly preferable to look at the overall nature of these kinds of decisions, and of their implications. Ideally, threshold jurisdictional issues should be as straightforward and free of ambiguity as possible. Otherwise, as these and many similar cases illustrate, courts spend an inordinate amount of time and effort attempting to ascertain their jurisdiction, while their resources would be better employed dealing with the issues on their merits.
Whether a conviction can be said to be unreasonable, or not supported by the evidence, imports in every case the application of a legal standard. The process by which this standard is applied inevitably entails a review of the facts of the case. I will say more about the review process below. As a jurisdictional issue of appellate access, the application of that legal standard is enough to make the question a question of law. It is of no import to suggest that it is not a “pure question of law”, or that it is not a “question of law alone”. ....
[26] However, I do not agree with CHL that this means that any error the appeal judge made was one of mixed fact and law, and thus not a “question of law alone” for the purposes of s. 131 of the POA. In criminal cases, Biniaris holds that when an appellate court finds a guilty verdict at trial to be unreasonable or not supported by the evidence under s. 686(1)(a) of the Criminal Code, this is deemed to be a “question of law” for the purpose of determining further Crown rights of appeal. I see no reason to take a different approach in POA appeals, particularly since the powers of an appellate court under s. 120(1)(a) of the POA are identical to the powers in s. 686(1)(a) of the Criminal Code.
[27] The Crown’s first two proposed grounds of appeal both seek to challenge the appeal judge’s conclusion that the evidence at trial did not support CHL’s conviction. I am satisfied that these grounds raise issues which Biniaris deems to be questions of law, such that the first requirement for granting leave under s. 131 of the POA is satisfied. . 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: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.
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