Simon's Megalomaniacal Legal Resources

Appeal - Standard of Review (SOR) - Written Hearings

This is an interesting issue, of which there may be contradictory Court of Appeal cases.

Where a hearing is held in writing, which is allowed both in administrative tribunals [SPPA 5.1] and courts [under their inherent jurisdiction], the issue arises as to whether the SOR should be deferential at all ... since the original decision-maker and the appeal court are both faced with precisely the same record and the absence of oral evidence (and therefore no credibility issues, which are the natural basis of deference). While the appeal court will naturally use a 'correctness' SOR on law, the argument exists (sound to my mind) that the fact issues and issues of mixed fact and law should also be reviewed on a correctness standard, not the Vavilov-dictated 'palpable and overriding error' standard.

The THMR and Boutette cases (below), both at the Court of Appeal level, would seen to be in conflict on this point.

. R. v. Ordonio [SOR]

In R. v. Ordonio (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal appeal, here from a conviction of "one count of first degree murder". The court considers the appellate SOR for whether a confession is voluntary, including where the interrogation is videotaped.

I include this extract in this 'appeal - SOR - written record' topic as it is analogous to the situation where the record below was fully written, as is common with administrative civil proceedings. In such a case the appellate court is fully able to assess the case with the same degree of accuracy as the lower tribunal/court, so why should the SOR be anything but 'correctness' in all respects - including fact, and mixed fact and law, issues? Are we to still sacrifice appellate accuracy when it is unnecessary out of some misguided deference?:

VI. THE STANDARD OF APPELLATE REVIEW

[63] Ascertaining the appropriate legal test to determine whether a confession is voluntary is a question of law; applying the appropriate test to determine whether a particular statement was or was not voluntary is a question of fact or of mixed law and fact. “If a trial court properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one and should only be overturned for ‘some palpable and overriding error which affected [the trial judge’s] assessment of the facts’”: Oickle, at para. 71, citing Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at para. 33; Beaver, at para. 54.

[64] This standard of review is “tied to the idea that the analysis under the confessions rule must be a contextual one in which bright-line rules are few. Where the law is properly understood and the relevant circumstances considered, the trial judge is best placed to measure that context and make the relevant findings”: Tessier, at para. 43.

[65] Consequently, mere disagreement by the appellate court with the trial judge regarding the weight to be given to various pieces of evidence is not a ground to reverse a finding on voluntariness: Oickle, at para. 22; Sopinka, at §8.164.

[66] This standard of appellate review applies even in cases, such as the present one, where the taking of an accused’s statement was videotaped and the appeal court can watch the entire interrogation. As the Supreme Court noted in Spencer, at para. 17, even where the interrogation is videotaped, other evidence may be heard during the voir dire on admissibility. In those circumstances, the testimony and cross-examination of those involved in the taking of the statement usually are important factors the trial judge is required to weigh in the overall inquiry into voluntariness. In Spencer the court viewed trial judges as sitting in the best position to draw conclusions from such evidence given that they deal with making findings of fact on a daily basis, as well as their privileged position in assessing the evidence as a whole.

[67] That said, the ability of an appeal court to watch the same recording of an interrogation as used by the trial judge enables it to gain a depth of understanding about the interrogation process otherwise not achievable from a mere transcript review. That, in turn, places the appeal court in an improved position to assess arguments that the trial judge made palpable and overriding errors, failed to consider the entirety of the evidence regarding the interrogation, or failed to assess the cumulative effect of the questioning.

. Flood v. Boutette

In Flood v. Boutette (Ont CA, 2021) the Court of Appeal makes the point that appellate deference to fact findings does not weaken just because the lower level proceedings were in writing:

[59] This submission runs contrary to the settled principle that appellate deference to a trial judge’s factual findings does not change simply because the trial record is in writing. As this court explained in FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd., 2007 ONCA 425, 85 O.R. (3d) 561, at para. 46:

The principle of appellate deference to a trial judge's fact-finding and inference-drawing applies even when the entire trial record is in writing. That is so because the principle of deference is grounded in more than a trial judge's ability to see and hear the witnesses. Deference recognizes that even on a written record, the trial judge “lives through” the trial while a court of appeal reviews the record only through the lens of appellate review. Deference also preserves the integrity of the trial process, maintains the confidence of litigants in that process, reduces the number and length of appeals and therefore, the cost of litigation, and appropriately presumes that trial judges are just as competent as appellate judges to resolve disputes justly.

[60] In IFP Technologies (Canada) Inc. v. EnCana Midstream and Marketing, 2017 ABCA 157, 53 Alta. L.R. (6th) 96, at paras. 66-77, leave to appeal refused, [2017] S.C.C.A. No. 303, the Alberta Court of Appeal considered the standard of review applicable in similar circumstances. The trial judge passed away before rendering a decision and, on consent, a new judge rendered a decision on a written record. On appeal, the court found that the usual standard of appellate review governs. As Fraser C.J. explained, appellate review is not intended to be a retrial, duplicating the trial judge’s efforts. The principal function of the appellate courts is to ensure consistency in the law, not correctness of factual findings in particular cases. Even when they do not hear evidence in person, trial judges have expertise in weighing evidence and navigating complex records. Appellate courts, on the other hand, must be mindful that a consistent standard of review helps maintain the effectiveness of appellate review for all litigants in the justice system.

. THMR Development Inc. v. 1440254 Ontario Ltd.

In THMR Development Inc. v. 1440254 Ontario Ltd. (Ont CA, 2018) the Court of Appeal makes this straightforward point when the hearing below is in writing:

[21] This court is in as good a position as the application judge to deal with the issue of remedy because this case was argued on a paper basis without the involvement of live witnesses.