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Appeals - SOR - Errors of Mixed Fact and 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 '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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