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Appeals - SOR - Errors of Mixed Fact and Law. Patel v. Dermaspark Products Inc.
In Patel v. Dermaspark Products Inc. (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal, here where the lower court "decided that the appellants were liable, jointly and severally, in the amount of $45,000, representing statutory damages of $5,000 for copyright infringement, $20,000 for trademark infringement, passing off, depreciation of goodwill and unfair competition, and $20,000 for punitive damages".
Here the court considers (perhaps critically) the appellate 'mixed questions of fact and law' category with it's 'palpable and overriding' standard of review:[6] Appellate courts bandy around the phrase "“questions of mixed fact and law”" but seldom define it, much to the prejudice of young practitioners, most of whom graduated from law schools that did not instruct them on the standard of review. For their benefit, questions of mixed fact and law are those where appellate courts apply the law to the facts of the case. This includes so-called discretionary questions where courts apply legal standards to a set of facts: Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 F.C.R. 331, citing Decor Grates Incorporated v. Imperial Manufacturing Group Inc., 2015 FCA 100, [2016] 1 F.C.R. 246 at paras. 15-29; see also Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at paras. 71-72.
[7] In some cases, legal questions predominate or fundamentally taint the question of mixed fact and law. In the parlance of appellate standards of review, this is called "“an extricable question of law”". When there is an extricable question of law, the appellate court can examine that question of law and decide it on a standard of correctness—i.e., without any deference at all to the first-instance court.
[8] But where legal questions are not extricable, i.e., do not predominate or fundamentally taint the question of mixed fact and law—in other words, where the question of mixed fact and law is factually suffused or the facts predominate—the appellate court can interfere only for palpable and overriding error.
[9] Palpable means obvious. And overriding means capable of changing the result of the case. As a practical matter, these two things very seldom happen together. First-instance judges almost never make obvious factual errors that can change the result of the case. Thus, reversal on this ground is rare indeed.
[10] On occasion, some have said that a lower standard, such as "“unsafe verdict”", might have been better in furthering accountability and high-quality decision-making. In some countries, that is the standard. But that is not our standard. The Supreme Court decided upon "“palpable and overriding error” "as our standard. It has kept that standard almost for a quarter-century.
[11] Truly, palpable and overriding error is a tough standard:Palpable and overriding error is a highly deferential standard of review: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Peart v. Peel Regional Police Services (2006), 2006 CanLII 37566 (ON CA), 217 O.A.C. 269 (C.A.) at paragraphs 158-59; Waxman, [2004 CanLII 39040 (ON CA), 186 O.A.C. 201 at paragraphs 278-84]. “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall. (Canada v. South Yukon Forest Corporation, 2012 FCA 165, 4 B.L.R. (5th) 31 at para. 46, adopted by the Supreme Court in Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352 at para. 38.)
[12] Later cases have clarified that the palpable and overriding error standard can be met not only by "“one decisive chop”" at the "“tree”" but by "“several telling ones”": Mahjoub at paras. 64-65.
[13] Examples of things that can qualify under this difficult-to-meet standard include a number of different types of errors: "“obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received [not] in accordance with the doctrine of judicial notice [""R. v. Spence, ""2005 SCC 71"", ""[2005] 3 S.C.R. 458""], findings based on improper inferences [""Pfizer Canada Inc. v. Teva Canada Limited, ""2016 FCA 161"", ""400 D.L.R. (4th) 723"" at paras. ""168-170]"" or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence”": Mahjoub at para. 62. But, as said before, only errors on central points that can change the result of the case will qualify.
[14] This discussion is not meant to suggest that the judgment of the Federal Court in this case survives only because the palpable and overriding error standard is hard to meet. But it is to suggest that many of the appellants’ submissions in this Court — vigorously argued and gamely pursued—run straight into this unforgiving and uncompromising standard. As a result, they must fail. . Kantoor v. City of Hamilton
In Kantoor v. City of Hamilton (Ont Divisional Ct, 2025) the Divisional Court allowed an appeal from a Small Claims Court action, and here comments on the appellate SOR for issues of 'mixed fact and law' with a novel perspective ('along a spectrum'):[8] I agree with my colleague, Justice LeMay, that the applicable standard of review is correctness on a question of law, palpable and overriding error on a question of fact, and somewhere along that spectrum on a question of mixed fact and law. Covenoho v. HomeLife Response Realty Inc., 2022 ONSC 5877, at paragraph 26, referring to the decision of the Supreme Court of Canada in Housen v. Nikolaisen, 2022 SCC 33. . 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 '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. . Abbott v. Canada (Attorney General)
In Abbott v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal set out the appellate standard of review where the judicial review application generated fresh findings at the first instance:[17] The standard set out in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 usually applies to an appeal from the judgment of a first instance court in an application for judicial review. However, this Court has held that "“where the application judge made findings of fact or mixed fact and law based on the consideration of evidence at first instance, rather than on a review of the administrative decision, these findings are reviewable on the Housen standard”" (Apotex Inc. v. Canada (Health), 2018 FCA 147, 157 C.P.R. (4th) 289, para. 57; Sturgeon Lake Cree Nation v. Hamelin, 2018 FCA 131, 424 D.L.R. (4th) 366, paras. 36-37). This is effectively the case here. Therefore, the appellate standard of palpable and overriding error applies to the Judge’s findings of fact, or mixed fact and law, regarding the respondents’ authorization to issue the directive.
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