|
Appeals - SOR - Palpable and Overriding Error (2). Trozzi v College of Physicians and Surgeons of Ontario
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court considered the meaning of 'palpable and overriding' error:[43] None of the issues raised above amounts to a palpable and overriding error. A “palpable error” is an obvious one that is plain to see on the evidence. An “overriding error” is an important error that may affect the ultimate outcome. Waxman v. Waxman, 2004 CanLII 39040 (ON CA), at paras. 296 and 297. . Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court considers all of the appellate standards of review for: 'palpable and overriding' errors, 'extricable errors of law' (that can sometimes occur with mixed findings of law and fact), and discretionary decisions:[26] The standard of review is palpable and overriding error for questions of fact and for questions of mixed fact and law (where the legal principle is not readily extricable), including with respect to the application of correct legal principles to the evidence.
[27] A palpable and overriding error is an obvious error that is sufficiently significant to vitiate the challenged finding: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 39. The appellant must show that the error goes to the root of the challenged finding such that it cannot safely stand in the face of the error: Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.), at para. 297, leave to appeal refused, [2004] S.C.C.A. No. 291.
[28] When the decision under appeal is fact-intensive or involves the exercise of discretion, care must be taken in identifying extricable errors of law since the process of severing out legal issues can undermine the standard of review analysis. An arguably unreasonable exercise of discretion is not an error of law or jurisdiction: Wood Buffalo (Regional Municipality) v. Alberta (Energy and Utilities Board), 2007 ABCA 192, 80 Alta. L.R. (4th) 229, at para. 8; Natural Resource Gas Limited v. Ontario (Energy Board), 2012 ONSC 3520 (Div. Ct.), at para. 8; Conserve Our Rural Environment v. Dufferin Wind Power Inc., 2013 ONSC 7307 (Div. Ct.), at para. 13.
[29] While an appellate court is empowered to replace a tribunal’s findings on questions of law with its own, the correctness standard does not detract from the need to respect the tribunal’s specialized function. The tribunal’s subject matter experience and expertise relating to the requirements of its home statute are to be taken into account: Reisher v. Westdale Properties, 2023 ONSC 1817 (Div. Ct.), at paras. 9-10, citing Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), at para. 31; Vavilov, at para. 36. . 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)] 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 characterizes the 'palpable and overriding' standard:[82] Under the highly deferential standard of palpable and overriding error, appellate intervention is warranted only where an error is both obvious and determinative of the outcome: Salomon v. Matte-Thompson, 2019 SCC 14 at para. 33 [Salomon]; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at paras. 61-75 [Mahjoub]. An appellate court must not reweigh the evidence that was before the motion judge and exercise discretion afresh: Salomon at para. 40; Mahjoub at paras. 70-79.
[83] In my view, the appellant and the interveners have not identified an error that is obvious and “goes to the very core of the outcome of the case”: Benhaim v. St‑Germain, 2016 SCC 48 at para. 38, citing Canada v. South Yukon Forest Corporation, 2012 FCA 165. ... . Auciello v. La
In Auciello v. La (Div Court, 2023) the Divisional Court considers the interpretation of 'palpable and overriding', here as an appellate standard of review:[74] In Waxman v. Waxman, 2004 CanLII 39040 (ON CA), at para. 296, the Court of Appeal describes a palpable error as follows:A “palpable” error is one that is obvious, plain to see or clear: Housen at 246. Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference. [75] An overriding error is one that vitiates the challenged finding. See: Waxman at para. 297.
[76] That is, under the applicable standard of review, I am required to defer to the Associate Justice’s findings of fact and mixed fact and law unless he made an error that is both practically obvious and important to the outcome. . Stamford Kiwanis Non-Profit Homes Inc. v. Municipal Property Assessment Corp.
In Stamford Kiwanis Non-Profit Homes Inc. v. Municipal Property Assessment Corp. (Div Court, 2023) the Divisional Court considered (and dismissed) an appeal by a non-profit housing provider of a dismissal of a Superior Court declaration application [under Assessment Act, s.46] that they were property-tax exempt as a charity. In this quote the court characterizes 'palpable and overriding' as an SOR:[25] The standard of review is palpable and overriding error for questions of fact and for questions of mixed fact and law (except as above), including with respect to the application of correct legal principles to the evidence. A palpable and overriding error is an obvious error that is sufficiently significant to vitiate the challenged finding: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 39. The appellant must show that the error goes to the root of the challenged finding such that it cannot safely stand in the face of the error: Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.), at p. 267, leave to appeal refused, [2004] S.C.C.A. No. 291. . ABDOU v. Governing Council of UOT
In ABDOU v. Governing Council of UOT (Div Court, 2023) the Divisional Court reviews some law of 'palpable and overriding' errors of fact and of mixed fact and law:[27] The palpable and overriding error test can only be met if the findings are clearly wrong or can properly be characterized as unreasonable and unsupported by the evidence. See: H.L. v. Canada (A.G.), 2005 SCC 25, at paras. 55-56.
[28] Examples of “palpable” factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence, and findings of fact drawn from primary facts that are the result of speculation rather than inference: Waxman v. Waxman, 2004 CanLII 39040 (ON CA), at para. 296.
[29] An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. The appellant must demonstrate that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error: Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 SCR 254, at para. 35; Waxman, at para. 297.
[30] The standard of review for findings of mixed fact and law is on a spectrum. If the issues of fact and law cannot be separated, the palpable and overriding error standard applies. However, the standard of correctness applies if the question of law is extricable from the factual matrix: Housen, at paras. 36-37. . Wasylyk v. Simcoe (County)
In Wasylyk v. Simcoe (County) (Ont CA, 2023) the Court of Appeal considers the 'palpable and overriding' appellate standard of review:[15] When reviewing a trial judge’s reasons for palpable and overriding error, this court must consider the reasons as a whole in the context of the issues raised and the arguments made: Farej v. Fellows, [2022] ONCA 254, at para. 45. It is not enough for an appellant to point to an ambiguity, inconsistency, omission, or other shortcoming in some aspect of the trial judge’s reasons. Appeal courts do not exist to grade the reasons of trial judges. Appellate courts must determine, on a fair and full reading of the record as a whole, whether the appellant has demonstrated reversible error. When the alleged error targets the fact-finding process at trial, deference sounds the loud keynote for appellate review. . Peckford v. Canada (Attorney General)
In Peckford v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered four related appeals from dismissed JRs against requirements that "air and rail travellers to be vaccinated against COVID-19", which were dismissed for mootness as the policy was spent. These quotes considered the 'palpable and overriding' appellate standard of review (deference):[7] In order to set aside a decision on the palpable and overriding error standard, the appellants must establish that the alleged error is obvious and goes to the very core of the outcome of the case. It is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall: Benhaim v. St‑Germain, 2016 SCC 48, [2016] 2 S.C.R. 352 at para. 38 (Benhaim), quoting from Canada v. South Yukon Forest Corporation, 2012 FCA 165 at para. 46. 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: Benhaim at paragraph 39, quoting from J.G. v. Nadeau, 2016 QCCA 167 at para. 77. As discussed in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at para. 62, examples of palpable errors 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. . Canadian Imperial Bank of Commerce v. Canada
In Canadian Imperial Bank of Commerce v. Canada (Fed CA, 2023) the Federal Court of Appeal considered the denial by the Tax Court of a GST refund application made by the appellant bank. The refund was for GST payed by the bank subsequent to a retroactive change in the law (which made financial services retroactively taxable), and was premised on an 'issue estoppel' argument grounded in pre-amendment assessments.
In this quote the court considers the meaning of 'palpable and overriding error':[65] As noted by the Supreme Court 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." . Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC
In Greenblue Urban North America Inc. v. Deeproot Green Infrastructure, LLC (Fed CA, 2023) the Federal Court of Appeal defines 'palpable and overriding' as an appellate standard of review:[61] The palpable and overriding error standard is an exacting one — an error is not palpable unless it is plainly seen and not overriding unless it affects the result. Where the evidence is capable of supporting a trial court’s factual findings, its findings cannot be set aside on the basis of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, 211 D.L.R. (4th) 577 at para. 23; Packers at para. 31; Janssen-Ortho Inc. v. Apotex Inc., 2009 FCA 212, 75 C.P.R. (4th) 411 at paras. 98, 102. . Le Feuvre v Enterprise Rent-A-Car Canada Company
In Le Feuvre v Enterprise Rent-A-Car Canada Company (Div Court, 2023) the Divisional Court considered an appeal of a denial of a class action certification motion. In these quotes the court considers the 'palpable and overriding' SOR:[25] The standard of review is palpable and overriding error for questions of fact and (except as noted above) for questions of mixed fact and law, including with respect to the application of correct legal principles to the evidence.
[26] A palpable and overriding error is an obvious error that is sufficiently significant to vitiate the challenged finding: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 39. The appellant must show that the error goes to the root of the challenged finding such that it cannot safely stand in the face of the error: Waxman v. Waxman (2004), 2004 CanLII 39040 (ON CA), 186 O.A.C. 201 (C.A.), at p. 267, leave to appeal refused, [2004] S.C.C.A. No. 291. . River Cree Resort Limited Partnership v. Canada
In River Cree Resort Limited Partnership v. Canada (Fed CA, 2023) the Federal Court of Appeal considered characterizations of 'palpable and overriding' errors, for the purpose of determining the appeal standard of review:[42] As noted by the Supreme Court 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." . Aslam v Ontario College of Pharmacists
In Aslam v Ontario College of Pharmacists (Div Court, 2023) the Divisional Court found in favour of an appellant on rare witness credibility grounds:[13] The Committee stated correctly the legal principles involved in assessing the credibility of witnesses. The Committee was entitled to believe all, part or none of the complainant’s evidence. It was not obliged to mention every item of evidence in its reasons. But the Committee made no reference to several important aspects of the evidence that had the potential to weigh heavily on the overall credibility and reliability of the complainant. We do not infer that the Committee simply thought them to be unimportant, because many of them were important enough for the Committee to decline to act on the complainant’s evidence with respect to most of the charges.
[14] Viewed as a whole the complainant’s evidence was self-contradictory and arguably bizarre at times. It was also contradicted by another employee whose evidence was accepted and by video surveillance evidence. She alleged that the appellant had sexually assaulted another employee, an allegation that the other employee denied occurred. She had a history of making serious allegations against fellow employees, allegations that were never substantiated. Rather than deal with these issues, it appears that the Committee compartmentalized the evidence charge by charge and omitted to consider it as a whole when determining the reliability of the complainant on the charges on which it found misconduct. That was an error. The concerns about the complainant’s reliability were concerns that went to her reliability as a whole, not just to her reliability when it came to one particular incident.
[15] The finding of misconduct is based entirely on the complainant’s evidence. The Committee’s approach to assessing her reliability was flawed. The verdict on the office incident, then, cannot stand. It must be tried again. . Louison Automotive Inc. v. Richards
In Louison Automotive Inc. v. Richards (Div Court, 2023) the Divisional Court considered the meaning of 'palpable and overriding':[10] This is a high standard. As the Supreme Court of Canada has observed in H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 70:The “palpable and overriding error” standard, apart from its resonance, nevertheless helps to emphasize that one must be able to “put one’s finger on” the crucial flaw, fallacy or mistake. In the words of Vancise J.A., “[t]he appellate court must be certain that the trial judge erred and must be able to identify with certainty the critical error.” . Canada (Commissioner of Competition) v. Rogers Communications Inc.
In Canada (Commissioner of Competition) v. Rogers Communications Inc. (Fed CA, 2023) the Federal Court of Appeal characterizes palpable and overriding error on mixed errors of fact and law:[7] ... But on factually suffused questions of mixed fact and law, we defer to the Tribunal, in fact quite significantly. To interfere on factually suffused questions of mixed fact and law, we must find palpable and overriding error or an "“obvious error”" going to the "“very core of the outcome of the case”". This is a high threshold. It is "“not enough to pull at leaves and branches and leave the tree standing”". Rather, "“[t]he entire tree must fall”". See 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 paras. 37-38; see also Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344. . Children’s Aid Society (Niagara) v. T. E.
In Children’s Aid Society (Niagara) v. T. E. (Div Court, 2022) the Divisional Court enumerated what might qualify as palpable error, here in a child welfare case:[62] Examples of palpable error include:a. Findings made in the complete absence of evidence (which can also amount to an error in law);
b. Findings made in conflict with accepted evidence;
c. Findings based on a misapprehension of the evidence;
d. Findings of fact, drawn from primary facts, that are a result of speculation rather than inference; and
e. Findings of fact based on evidence that has no evidentiary value because it has been rejected by the trier of fact. See: D.M. v. The Children’s Aid Society of Ottawa, at para. 173. . Ontario College of Veterinarians of Ontario v. Dr. Ackerman
In Ontario College of Veterinarians of Ontario v. Dr. Ackerman (Div Court, 2022) the Divisional Court characterized the terms 'palpable' and 'overriding':[60] As described in the preceding paragraphs, the standard of review is one of palpable and overriding error with respect to findings of fact and of mixed fact and law. An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and overriding if it has affected the result. It is a “beam in the eye”, not a needle in a haystack: Hydro-Quebec v. Matta, 2020 SCC 37, at para. 33. . Xanthopoulos v. Canada (Attorney General)
In Xanthopoulos v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considers the standard of review for appealing dismissal of a judicial review for prematurity:[3] As stated, this is an appeal of a decision striking an application for judicial review for prematurity. It is not a ruling on the merits of the application itself or the Conduct Board’s decision. Accordingly, the applicable standard of review is the normal appellate standard as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235: correctness on issues of law, and palpable and overriding error on issues of fact or of mixed fact and law in which there is no extricable issue of law. As stated in Canada v. South Yukon Forest Corporation, 2012 FCA 165 at para. 46:“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. . 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]
|
