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Appeals - Standard of Review - First Impressions (De Novo). Canadian National Railway Company v. Kitchener (City)
In Canadian National Railway Company v. Kitchener (City) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against "an order granting partial summary judgment in favour of the respondent, Hogg Fuel & Supply Limited (“Hogg”), dismissing CN’s claims relating to coal tar contamination on its property".
Here the court notes that the appellate SOR for issues of 'abuse of process' is correctness, and that where an appellate issue is one of 'first impression' the SOR deference is also correctness:[14] The parties both submit that abuse of process is a finding of mixed fact and law, which, if they are right, would mean it is owed deference on appeal absent an extricable error of law: Davies v. Clarington (Municipality), 2023 ONCA 376, 167 O.R. (3d) 33, at para. 48.
[15] However, as Favreau J.A. recently explained in Pine Glen Thorold Inc. v. Rolling Meadows Land Development Corporation, 2025 ONCA 604, 178 O.R. (3d) 241, at para. 37, leave to appeal requested, [2025] S.C.C.A. No. 459, although this court has previously held that a finding of abuse of process is a question of mixed fact and law, the Supreme Court has held that abuse of process is a question of law alone:This court has characterized abuse of process as a question of mixed fact and law subject to the palpable and overriding standard of review absent an error of law: SIF Solar Energy Income & Growth Fund v. Aird & Berlis LLP, 2024 ONCA 946, at para. 19; Davies v. Clarington (Municipality), 2023 ONCA 376, 167 O.R. (3d) 33, at para. 48. In contrast, the Supreme Court has stated that abuse of process is a question of law alone and that the applicable standard of review is correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, [2022] 2 S.C.R. 220, at para. 30; Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, 500 D.L.R. (4th) 279, at para. 31. [16] However, because this court in Pine Glen Thorold had to determine the abuse of process question de novo, Favreau J.A. saw no need to address this discrepancy.
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