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Appeals - SOR - Palpable and Overriding Error (2)

. Taliano v. College of Physicians and Surgeons of Ontario

In Taliano v. College of Physicians and Surgeons of Ontario (Div Court, 2022) the Divisional Court considered the meaning of the palpable and overriding standard of review:
Palpable and Overriding Error

[42] As put by the Supreme Court of Canada in Hydro-Québec v. Matta, 2020 SCC 37, 450 D.L.R. (4th) 547, at para. 33:
Absent a palpable and overriding error, an appellate court must refrain from interfering with findings of fact and findings of mixed fact and law made by the trial judge. An error is palpable if it plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result. As Morissette J.A. so eloquently put it … “a palpable and overriding error is in the nature not of a needle in the haystack, but of a beam in the eye. And it is impossible to confuse these last two notions”. The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see. [Citations omitted.]
[43] Another way of driving home the distinction between an error that is palpable and overriding and one that is not was adopted by the Supreme Court in Benhaim v. St-Germain, 2016 SCC 48 (CanLII), [2016] 2 S.C.R. 352, at para. 38, where the Court quotes with approval the following statement by Stratas J.A. in Canada v. South Yukon Forest Corporation, 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46: “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.”

[44] In R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, the Supreme Court recognized, at para. 20, that:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.
. Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue)

In Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue) (Fed CA, 2022) the Federal Court of Appeal characterizes the palpable and overriding standard of review:
[34] The test for setting aside a decision for palpable and overriding 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:
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 CanLII 37566 (ONCA), (2006) 217 O.A.C. 269 (C.A.) at paragraphs 158-159; 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.
. Hirtle v. College of Nurses of Ontario

In Hirtle v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court characterizes the palpable and overriding standard of review:
[34] Palpable and overriding error is a highly deferential standard that recognizes the expertise and competence of the trier of fact. It authorizes appellant intervention only where the error in both obvious and determinative of the outcome: Laliberte v. Day, 2020 FCA 119, [2021] 1 F.C.R. 22, at para. 32, citing Salomon v. Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729, at para. 33. It does not permit an appellate court to reweigh the evidence that was before the Panel: Laliberte, at para. 32, citing Salomon, at para. 40.
. Caine v. Ontario College of Teachers

In Caine v. Ontario College of Teachers (Div Ct, 2022) the Divisional Court characterized and defined as palpable error [see the case itself for the numbered authorities]:
[25] An error is palpable if it is obvious and plainly seen, and if all the evidence need not be reconsidered to identify it. It is not a needle in a haystack but a beam in the eye.[3] An overriding error is one that is likely to have affected the result and goes to the very core of the outcome of the case – “[w]hen 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.”[4]

[26] Palpable and overriding error is a highly deferential standard that recognizes the expertise and competence of the trier.[5] It is not the role of appellate courts to second-guess the weight assigned to items of evidence by the trier.[6] In particular, the fact that an alternative factual finding could be reached based on a different ascription of weight by an appellate court does not mean that a palpable and overriding error has been made.[7]




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