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Appeals - Standard of Review (SOR) - Errors of Law. R. v. T.J.F. [TJF]
In R. v. T.J.F. (SCC, 2024) the Supreme Court of Canada dismissed a Crown appeal, here in relation to charges for "trafficking in persons .... and receiving a material benefit from it, contrary to ss. 279.01(1) and 279.02(1)" of the CCC.
Here the court considers the analysis of appeals for error of law, which it identifies with the appellate analysis for inadequate reasons for decision:[47] When an appellate court reviews reasons for errors of law, it must be “rigorous in its assessment”, approaching the review in the same way it would approach allegations of insufficient reasons (R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 79). It must presume that a trial judge “know[s] the law . . . and deal[s] competently with the issues of fact” (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 32 and 55; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 54; G.F., at para. 74; R. v. Gerrard, 2022 SCC 13, at para. 2; R. v. Kruk, 2024 SCC 7, at para. 84). It is not enough to suspect the trial judge erred in law; the appellate court must be satisfied that the trial court erred having given its reasons “a fair reading” (J.M.H., at paras. 20, 23 and 31). That is, having read them “as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered” (R.E.M., at para. 16; see, in the context of an appeal from an acquittal, R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 18, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at pp. 203-4). . 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. . 1284225 Ontario Limited v. Don Valley Business Park Corporation
In 1284225 Ontario Limited v. Don Valley Business Park Corporation (Ont CA, 2024) the Ontario Court of Appeal categorizes contractual errors of law for standard of review purposes:[4] Absent error, the application judge’s interpretation of the parties’ Parking Agreement is owed considerable appellate deference and is reviewable on a standard of “palpable and overriding error”: Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 21. However a correctness standard applies if the appeal involves the incorrect application of a legal principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor: Heritage Capital, at para. 22. . Canada v. Hudson
In Canada v. Hudson (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) Crown appeals of stays issued [under Federal Court Act s.50(1)(b) - 'Stay of proceedings authorized'] against two RCMP-related uncertified class actions (Hudson and Pierrot), here on the basis that they were duplicative of pre-existing (and certified) class actions (Greenwood and AMPMQ).
Here, the court considers a standard of review for discretionary decisions:[37] The failure to identify or consider the legal criteria that govern the exercise of discretion may constitute an error of law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 at para. 39, 144 D.L.R. (4th) 1; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at para. ....43. . Elkins v. Van Wissen
In Elkins v. Van Wissen (Ont CA, 2023) the Court of Appeal considers (and allows) an appeal from an earlier Divisional Court RTA s.210 appeal on an RTA 57(1) ['Former tenant’s application where notice given in bad faith'] compensation application.
In these quotes the court identifies a legal error where the tribunal fails to grapple with key required legal issues:(3) Failure to grapple with the issues and the evidence
[67] An administrative decision maker’s reasons must “meaningfully account for the central issues and concerns raised by the parties” and be responsive to the parties’ submissions: Vavilov, at para. 127. The Board reasons do neither. Consequently, they prevent meaningful appellate review and constitute an error of law: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 28; Hanna & Hamilton Construction Co. Ltd. v. Robertson, 2021 ONCA 660, at para. 6.
[68] In this case, among other things, the T5 Application presented the Board with two issues for resolution: (1) did the Vendor Landlords give the s. 49 Termination Notice in bad faith? and (2) did the Purchasers, in good faith, require possession of the Residence for residential occupation? The Board reasons make no mention of the second issue nor the evidence relating to it. Clearly, appellate review was prevented on that issue and, for that reason alone, the Board erred in law.
[69] In addition, however, the Board reasons on the first issue are so deficient as to constitute legal error. The Board made no attempt to grapple with the body of evidence adduced, or the Tenants’ submissions on whether the Vendor Landlords gave the s. 49 Termination Notice in bad faith. Instead, the Board simply recited the Vendor Landlords’ assertion that when they gave the Tenants the s. 49 Termination Notice, there was no reason to believe it was not the purchasers’ intention to have a family member reside in the Residence.
[70] Even on the improperly narrow view of the test for bad faith used by the Board, it failed to address the evidence adduced on this issue. That evidence includes: (1) the Vendor Landlords’ receipt of the Form 160, in which one of the Original Purchasers stated that he was a real estate salesperson as well as one of the Original Purchasers, and stated, “Being a partner, we are buying this property as a future development”; and, (2) the Original Purchasers’ bald assertion that they intended the Residence for personal use.
[71] Had the Board approached the first issue correctly, it would have considered the relevant circumstances both before and after serving the s. 49 Termination Notice. In addition to the two evidentiary considerations noted above, the Board would have had to consider that: prior to closing, the Vendor Landlords and/or their lawyer knew title to the Property was to be taken in the name of a corporation and a corporation cannot personally occupy residential premises; the Residence remained vacant for five months after closing; it was then occupied for only about 25 days by one of the Original Purchasers’ sons; and, thereafter, the Residence was rented out for a higher price than that which the Tenants had paid.
[72] The failure of the Board to address the evidence on the central issue of the Vendor Landlords’ bad faith prevents appellate review and constitutes an error of law.
C. Result
[73] Because the Board failed to make the factual findings necessary to fairly resolve the Tenants’ T5 Application, this court is not in a position to decide it. Accordingly, I would remit it to the Board for a redetermination in accordance with these reasons. . Sandoz Canada Inc. v. Janssen Inc.
In Sandoz Canada Inc. v. Janssen Inc. (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an appeal from a dismissed action for 'patent invalidity', here on the ground of lack of utility.
In this quote the court states a characterization of an 'error of law':[12] Sandoz argues that its position is similar to the example cited in Housen at paragraph 27 and quoted from 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:[I]f 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. . Smith v. Gega
In Smith v. Gega (Div Court, 2023) the Divisional Court applied a novel, functional determination of when an issue was one of law as opposed to one of 'mixed fact and law':[19] This issue is a matter of law. The Landlords argue that this issue is a matter of mixed fact and law, but there are no factual findings that need to be made by me to consider this question. . Chan v. Tralen Investments Ltd.
In Chan v. Tralen Investments Ltd. (Div Court, 2023) the Divisional Court characterizes a 'question of law', as it limits appeal grounds:[8] Section 210 of the RTA provides a statutory right to appeal a decision of the LTB, but only on a question of law. In Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337 (Div. Ct.), at para. 28, aff’d 2022 ONCA 446, 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). . Abdi v. TD General Insurance Company
In Abdi v. TD General Insurance Company (Div Court, 2023) the Divisional Court considered an auto insurance SABS LAT appeal on the issue of 'catastrophic impairment'. In this brief quote the court identifies a breach of procedural fairness as one of error of law [SS: appeals in this case were allowed only on 'questions of law': ss. 11(1) and (6) of the Licence Appeal Tribunal Act, 1999]:[6] ... A breach of procedural fairness constitutes an error of law: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 22. . Westdale Properties v. Reisher
In Westdale Properties v. Reisher (Div Court, 2023) the Divisional Court defines a 'question of law', here in the context of an RTA s.210 appeal:[21] An appeal from the LTB may only be taken on a question of law. The Supreme Court of Canada has provided guidance on what is a question of law and what is a question of fact: see Canada (Director of Investigation & Research) v. Southam Inc.:[Q]uestions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests. (Southam at para. 35). . Hodge v. Registrar Real Estate and Business Brokers Act
In Hodge v. Registrar Real Estate and Business Brokers Act (Div Court, 2022) the Divisional Court located abuses of process as issues of law for standard of review purposes:[17] Issues of procedural fairness in the context of a statutory appeal are subject to appellate standards of review: Law Society of Saskatchewan v. Abrametz at para. 27. Abrametz was a case that raised issues of abuse of process, a component of procedural fairness. The Supreme Court discussed the relationship between abuse of process, fair play, and the relationship between administrative decisionmakers, those affected by the decisions and society. Questions of abuse of process are questions of law, and thus, we apply a standard of correctness to the question of procedural fairness in the context of this statutory appeal: See Abrametz at paras. 30-36. . Di Blasi v. York (Regional Municipality) [for case cites see the link]
In Di Blasi v. York (Regional Municipality) (Div Court, 2022) the Divisional Court notes that issues of statutory interpretation are issues of law, as set out in Vavilov:[3] The decision below was made under the Expropriations Act, which provides a right of appeal to this court “on a question of law or fact or both” (Expropriations Act, RSO 1990, c. E.26, s.31(1)). The standard of review is the “appellate standard” (Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65). As stated in Vavilov, at para. 37:Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] SCR 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for mixed questions of fact and law where the legal principle is not readily extricable) .... . Kawa Arab v. Unica Insurance
In Kawa Arab v. Unica Insurance (Div Court, 2022) the Divisional Court located an administrative decision of statutory interpretation as a matter of law:[18] Section 11(6) of the LAT Act provides that an appeal from a decision of the Tribunal relating to a matter under the Insurance Act may only be on a question of law. Pursuant to Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (S.C.C.), where a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision-maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
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[21] I reject the Respondent’s critique that the Appellant appeal raises an error of fact or mixed fact and law. As I understand the Appellant’s argument, the Adjudicators’ error lay in their narrow interpretation of the term “employed” which limited their consideration to the weeks that the Appellant was at work, as opposed to taking into account the employment relationship as a whole and the formal termination on November 30, 2016. A broad interpretation of the term “employed” would have brought the Appellant within the requirements of section 5(1) of the Schedule because the employer ended the formal employment relationship on November 30, 2016, a few months after accident. This is an error of law and the standard or review for a statutory appeal on a question of law is correctness. . Kawa Arab v. Unica Insurance
In Kawa Arab v. Unica Insurance (Div Court, 2022) the Divisional Court located an administrative decisions of jurisdiction as a matter of law:[18] Section 11(6) of the LAT Act provides that an appeal from a decision of the Tribunal relating to a matter under the Insurance Act may only be on a question of law. Pursuant to Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (S.C.C.), where a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision-maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. . Mohamed v. Aviva Insurance Company
In Mohamed v. Aviva Insurance Company (Div Ct, 2021) the Divisional Court considered what constitutes a question of law for appeal purposes:
[8] This Court, in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), at para. 28, explained what constitutes a question of law in an appeal: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). [Emphasis added] . Carr v. Brown
In Carr v. Brown (Div Court, 2022) the Divisional Court held that a fairness breach was an error of law, and thus within the court's jurisdiction under RTA 210:[7] Issues of procedural fairness do fall within this Court’s jurisdiction. A failure on the part of the Board to ensure that a hearing is procedurally fair is an error of law: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 22, Tipping v Coseco Insurance Co, 2021 ONSC 5295, at para. 41, 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264 at para. 8. . Law Society of Saskatchewan v. Abrametz
In Law Society of Saskatchewan v. Abrametz (SCC, 2022) the Supreme Court of Canada commented on standard of review for abuse of process, here in an appeal case:[30] Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness. . Peel Standard Condominium Corporation No. 779 v. Rahman
In Peel Standard Condominium Corporation No. 779 v. Rahman (Div Ct, 2021) the Divisional Court held that issues of procedural fairness are issues of 'law', which allows them to be advanced on appeal:[17] In Tipping v. Coseco Insurance Company, 2021 ONSC 5295 (Div. Ct.), Justice Favreau found that judicial review is not available, absent exceptional circumstances, where there is a statutory appeal not pursued by the applicant. Favreau, J. held at para. 36:Judicial review is a discretionary remedy which is not available where there is an adequate alternative remedy: Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561. Absent exceptional circumstances, the court will dismiss an application for judicial review where an applicant has not exhausted all alternative remedies: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at paras. 68-70. The Divisional Court has repeatedly dismissed applications for judicial review where a party has not pursued a right or appeal or other available remedies: see, for example, Stentsiotis v. Social Benefits Tribunal, 2011 ONSC 5948; Worden v. Ontario Municipal Board, 2014 ONSC 7247; Hsieh v Ministry of Community and Social Services et al, 2017 ONSC 3094; and Vangjeli v. WJ Properties, 2019 ONSC 5631. [18] In Tipping v. Coseco Insurance Company the court held at para. 41 that: “Procedural fairness and natural justice, including allegations of bias, are questions of law. An appeal from the LAT on those issues is therefore an obvious adequate alternative remedy.” The same applies to an appeal from the CAT. In Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756 (Div Ct), the court dismissed a judicial review application on the grounds that the applicant had failed to pursue a statutory appeal. The court held at para. 35 that an issue of procedural fairness can be raised on appeal, and allegations of procedural unfairness do not constitute an exceptional circumstance. . Hudson Bay Railway Company v. Rosner
In Hudson Bay Railway Company v. Rosner (Fed CA, 2021) the Federal Court of Appeal considered what constituted an error of law:[20] In my view, the central issues concern whether the Agency erred in law. The Supreme Court in Housen, albeit writing in the context of negligence law, described an error of law as including the application of an incorrect legal standard, a failure to consider a required element of a legal test, or the mischaracterization of the standard (Housen at paras. 36-37). . Mubarak v. Toronto Community Housing Corporation
In Mubarak v. Toronto Community Housing Corporation (Div Ct, 2021) the Divisional Court stated succinctly the question of law standard of review:[31] In Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35, the Supreme Court of Canada explained that “questions of law are questions about what the correct legal test is”.
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