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Appeals - Standard of Review (SOR) - Palpable and Overriding Error. Bennett v. Canada
In Bennett v. Canada (Fed CA, 2022) the Federal Court of Appeal defined 'palpable and overriding error':[7] As was explained to the appellant during the hearing, our function is not to retry his case or to re-weigh the evidence that was before the Tax Court. Quite the contrary, we can only intervene if we determine that the Tax Court either erred in law or made a palpable and overriding error of fact. The test for setting aside a decision for palpable and overriding factual error is an exacting one. An error is only palpable if it is obvious or plainly seen and only overriding if it affects the result reached. As stated by this Court in Canada v. South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286 at para. 46:[46] 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, supra. “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. . Billimoria v. Mistry
In Billimoria v. Mistry (Ont CA, 2022) the Court of Appeal stated a definition of 'palpable and overriding error':[22] ... A palpable and overriding error includes a finding that is clearly wrong, unreasonable or unsupported by the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para 4. . City Star Roofers Inc. v. 2169462 Ontario Limited
In City Star Roofers Inc. v. 2169462 Ontario Limited (Div Ct, 2022) the Divisional Court defines the 'palpable and overriding' standard of review:[17] A palpable and overriding error is “an obvious error that is sufficiently significant to vitiate the challenged finding”: Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 39. . Crosslinx Transit Solutions General Partnership v. Ontario (Economic Development, Employment and Infrastructure)
In Crosslinx Transit Solutions General Partnership v. Ontario (Economic Development, Employment and Infrastructure) (Ont CA, 2022) the Court of Appeal characterized the palpable and overriding standard of review:[21] The standard of review for palpable and overriding error is well-established. In R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at para. 9, the Supreme Court, relying on a long line of decisions including Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, articulated the standard in the following way:
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm. [Citations omitted.] . Carmichael v. GlaxoSmithKline Inc.
In Carmichael v. GlaxoSmithKline Inc. (Ont CA, 2020) the Court of Appeal considered when an allegation of misapprehension of fact meets the palpable and overriding standard:[124] In my view, therefore, the motion judge’s finding that he had “no trouble” concluding that several of the Huang/Hengeveld indicators of capacity were not met reflects a misapprehension of the evidence. A misapprehension of the evidence “may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence”: Moore v. Apollo Health & Beauty Care, 2017 ONCA 383, at para. 37, citing R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 538. Here, the motion judge made a mistake about the substance of the evidence and failed to give proper effect to the evidence, by finding that the evidence showed that several of the Huang/Hengeveld indicators of capacity were absent, when that was not so.
[125] A misapprehension of evidence justifies appellate intervention where it is palpable and overriding, that is, where the misapprehension is obvious and goes to the very core of the outcome of the case: see Moore, at para. 40; Benhaim v. St‐Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 38; and Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.), 44 B.L.R. (3d) 165, at paras. 296-297, leave to appeal refused, [2004] S.C.C.A. No. 291. That is so here, because the motion judge’s misapprehension is obvious and was essential to his conclusion that Mr. Carmichael was incapable of suing GSK until December 2, 2009, because of his psychological condition. . Schwarz v. The College of Physicians and Surgeons of Ontario
In Schwarz v. The College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court set out a definition for the 'palpable and overriding' standard of review:[53] “An error is palpable if it is plainly seen and if all the evidence need not be reconsidered to identify it, and is overriding if it has affected the result.” It is not in the nature of a “needle in the haystack, but of a beam in the eye”: Hydro-Québec v. Matta, 2020 SCC 37, at para. 33. ... . Ark Angel Fund v. Canada (National Revenue)
In Ark Angel Fund v. Canada (National Revenue) (Fed CA, 2020) the Federal Court of Appeal characterized the palpable and overriding standard for errors in fact-finding in scenic terms:[5] Palpable and overriding error is a high standard. In one case, this Court explained the standard as one where "“[t]he entire tree must fall”"; "“it is not enough to pull at leaves and branches and leave the tree standing”": South Yukon Forest Corp. v. Canada, 2012 FCA 165, 4 B.L.R. (5th) 31 at para. 46, approved in Benheim v. St. Germain, 2016 SCC 48, [2016] 2 S.C.R. 352 at para. 38. In another case, this Court explained the standard as follows:Palpable” means an error that is obvious. Many things can qualify as “palpable”. Examples include obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received in accordance with the doctrine of judicial notice, findings based on improper inferences or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence.
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“Overriding” means an error that affects the outcome of the case. It may be that a particular fact should not have been found because there is no evidence to support it. If this palpably wrong fact is excluded but the outcome stands without it, the error is not “overriding”. The judgment of the first-instance court remains in place.
There may also be situations where a palpable error by itself is not overriding but when seen together with other palpable errors, the outcome of the case can no longer be left to stand. So to speak, the tree is felled not by one decisive chop but by several telling ones.
(Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at paras. 62, 64-65.) . Eisbrenner v. Canada
In Eisbrenner v. Canada (Fed CA, 2020) the Federal Court of Appeal considered the status of donated pharmaceuticals as charitable donations under two government-sponsored programs. During this the court quoted leading doctrine on 'palpable and overriding error' which supports an error of fact-finding:[21] The Supreme Court of Canada adopted the following descriptions of a palpable and overriding error in Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352:38 It is equally useful to recall what is meant by "palpable and overriding error". Stratas J.A. described the deferential standard as follows in South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46:Palpable and overriding error is a highly deferential standard of review ... . "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. 39 Or, as Morissette J.A. put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 (CanLII), [TRANSLATION] "a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions." . Muise v. Mark Wilson’s Better Used Cars Limited
In Muise v. Mark Wilson’s Better Used Cars Limited (Div Ct, 2021) the Divisional Court describes the standard of review of 'palpable and overriding error':[7] A palpable and overriding error has been described by the Federal Court of Appeal in its decision in Zero Spill Systems (Int'l) Inc. v. Heide, 2015 FCA 115 at para 49 as follows:Palpable and overriding error is a highly deferential standard. "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. . Sher-E Punjab Radio Broadcasting Inc. v. Canada
In Sher-E Punjab Radio Broadcasting Inc. v. Canada (Fed CA, 2020) the Federal Court of Appeal cited useful definitions of 'palpable and overriding' as a standard of review:[13] Palpable and overriding error is a high standard for an appellant to satisfy. The Supreme Court of Canada adopted the following descriptions of a palpable and overriding error in Benhaim v. St-Germain, 2016 SCC 48:38 It is equally useful to recall what is meant by "palpable and overriding error". Stratas J.A. described the deferential standard as follows in South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46:Palpable and overriding error is a highly deferential standard of review ... . "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. 39 Or, as Morissette J.A. put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77 (CanLII), [TRANSLATION] "a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions."
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