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Discretion - Standard of Review (SOR). 1814219 Ontario Inc. v. 2225955 Ontario Ltd.
In 1814219 Ontario Inc. v. 2225955 Ontario Ltd. (Div Court, 2024) the Divisional Court considered the SOR for discretionary decisions:[27] Where a judge has made an order in the exercise of judicial discretion, the court will intervene only if the exercise of the judge’s discretion was based on an incorrectly applied principle, a failure to consider a relevant principle, or a misapprehension of the evidence: see Aldo Group Inc. v. Moneris Solutions Corporation, 2013 ONCA 725, 118 O.R. (3d) 81, at para. 30. . Fresco v. Canadian Imperial Bank of Commerce
In Fresco v. Canadian Imperial Bank of Commerce (Ont CA, 2024) the Ontario Court of Appeal dismissed a class action plaintiff's fee dispute appeal.
Here the court usefully reviews the SOR applying to discretionary decisions, specifically discussing 'deference' as a concept:[31] On the first point, as stated in 2017 by the Supreme Court in Canada (Attorney General) v. Fontaine, 2017 SCC 47, [2017] 2 S.C.R. 205, at para. 36, a discretionary decision is entitled to deference. The court wrote:As regards the exercise of discretion, “appellate intervention is warranted only if the judge has clearly misdirected himself or herself on the facts or the law, proceeded arbitrarily, or if the decision is so clearly wrong as to amount to an injustice.” P. (W.) v. Alberta, 2014 ABCA 404, 378 D.L.R. (4th) 629, at para. 15; Balogun v. Pandher, 2010 ABCA 40, 474 A.R.258, at para.7. As this Court has said, where the judge had given sufficient weight to all relevant considerations and the exercise of discretion is not based on an erroneous principle, appellate reviewers must generally defer. [Citations omitted.] [32] This standard of review is not an open invitation to reweigh the evidence and Lavier should not be read as suggesting otherwise. As Laskin J.A. wrote in Reeves v. Brand, 2018 ONCA 263, 8 R.F.L. (8th) 1, at para. 23:The exercise of discretion involves the weighing of relevant considerations…To accede to the submission that an appeal court should intervene because it would have given more weight to a relevant consideration is to abandon discretion altogether. To be justified in interfering, an appellate court would have to be satisfied that the trial judge’s exercise of discretion was unreasonable. [Citations omitted.] [33] Similarly, in O’Brien v. Chuluunbaatar, 2021 ONCA 555, 461 D.L.R. (4th) 113, this court held that the appeal judge below had erred in law in interfering with the trial judge’s discretionary decision on the basis that she had given insufficient weight to a relevant consideration. As Gillese J.A. explained “[a]n appeal court is not to reweigh the relevant considerations”: at para. 48.
[34] In sum, appellate courts should review discretionary decisions with a posture of deference and may not interfere absent the parameters described by the Supreme Court in Fontaine.
[35] Dealing with the appellants’ second point on the absence of any long-standing involvement by the motion judge in this particular case, I do not agree with this submission. Repeatedly, the Supreme Court has instructed that the standard of review of a discretionary decision is deferential: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 83. The concept of deference is deeply embedded in the hierarchical structure of the courts. It is not confined to cases with which the judge has long-standing or deep familiarity. As this court said of reviewing discretionary decisions in Cowles v. Balac, 2006 CanLII 34916 (ON CA), 83 O.R. (3d) 660 (C.A.), at para. 41:Appellate deference for the exercise of discretion by lower courts is justified on several bases: it serves to recognize the expertise of the lower court; it promotes the integrity and autonomy of the proceedings in the lower court; it limits the number, length and costs of appeals; and, in some cases (not this one), it recognizes the advantage that the lower courts have from firsthand observation of the evidence. . Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
Here the court considers boundaries of the legal concept of 'discretion':[153] Discretion refers to those “decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options” within constraints imposed by law (Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 52). The legal constraints can include, but are not limited to, “statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter” (para. 56; see also Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at paras. 32-33). In the present context, the relevant legal constraints include the constitutional principle of the honour of the Crown.
[154] This Court has long recognized that “there is no such thing as absolute and untrammelled ‘discretion’” (Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, at p. 140; Vavilov, at para. 108; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175, at para. 73). As noted by LeBel J. in Montréal (City), at para. 33, “in a country founded on the rule of law and in a society governed by principles of legality, discretion cannot be equated with arbitrariness”. Our law requires discretion to be “exercised within a specific legal framework”, and recognizes that “[d]iscretionary acts fall within a normative hierarchy” (para. 33). In a similar vein, Sir William Wade and Christopher Forsyth have stated that “in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms” (Wade & Forsyth’s Administrative Law (12th ed. 2023), at p. 303). Wade and Forsyth declared that a claim of unfettered discretion by government is “constitutional blasphemy. . . . Unfettered discretion cannot exist where the rule of law reigns” (p. 16). It is therefore not surprising that Ontario abandoned reliance on the first interpretation, or that it was unanimously rejected by the courts below. . Harris v. Bayerische Motoren Werke Aktiengesellschaft et al.
In Harris v. Bayerische Motoren Werke Aktiengesellschaft et al. (Div Court, 2024) the Divisional Court made the following comments on the SOR for matters of discretion:[14] 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.
[15] On an appeal of a judge’s discretionary decision, the court will only intervene where the discretion was exercised on a wrong principle of law, or a clear error has been made. An appellate court should defer to the findings of fact made by a motion judge unless the judge has disregarded or failed to appreciate relevant evidence: Bottan v. Vroom, 2002 CanLII 41691 (Ont. C.A.), at para 13; Rimon v. CBC Dragon Inc., 2024 ONCA 128, at para. 14. . 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. . Rimon v. CBC Dragon Inc.
In Rimon v. CBC Dragon Inc. (Ont CA, 2024) the Court of Appeal considered the appellate SOR for discretionary decisions:[14] On an appeal of a judge’s discretionary decision, this court will intervene only where the discretion has been exercised on a wrong principle of law or a clear error has been made. An appellate court should defer to the findings of fact made by a motion judge unless they disregarded or failed to appreciate relevant evidence: Bottan v. Vroom, 2002 CanLII 41691 (Ont. C.A.), at para. 13. This general rule applies where an appellate court reviews a judge’s decision to strike a pleading: Aslezova v. Khanine, 2023 ONCA 153, at para. 14. . 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) - 'Stay of proceedings authorized'] 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 considers a standard of review for discretionary decisions:[37] The failure to identify or consider the legal criteria that govern the exercise of discretion may constitute an error of law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 at para. 39, 144 D.L.R. (4th) 1; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at para. ....43. . Leamington (Municipality of) v. Enbridge Gas Inc.
In Leamington (Municipality of) v. Enbridge Gas Inc. (Div Court, 2023) the Divisional Court considers an appeal under s.33 ['Appeal to Divisional Court'] of the Ontario Energy Board Act (OEB), here of the OEB's decision to approve "the application of the respondent Enbridge Gas Inc. to renew the existing natural gas franchise between Leamington and Enbridge on the terms and conditions set out in the OEB’s Model Franchise Agreement". Here the court considers the appellate standard of review for discretionary decisions:[32] 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.
....
[42] Leamington is not permitted to appeal the OEB’s discretionary determination, as appeals only lie on questions of law or jurisdiction: OEB Act, s. 33(2). Which specific terms of renewal agreement are appropriate and are in the public interest is not a question of law or jurisdiction. Even if an exercise of discretion is arguably unreasonable – which is not the case here – it would still not give rise to an error of law or jurisdiction: Wood Buffalo, at para. 8; Conserve Our Rural Environment, at para. 13. . College of Physicians and Surgeons of Ontario v. Kilian
In College of Physicians and Surgeons of Ontario v. Kilian (Ont CA, 2023) the Court of Appeal considered the appellate SOR for discretionary orders:[45] The exercise of discretion is entitled to deference on appeal unless the application judge made an error in principle or if the exercise of discretion results in an order that is plainly wrong: Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754, at para. 46. We see no such error. . Carcillo v. Ontario Major Junior Hockey League
In Carcillo v. Ontario Major Junior Hockey League (Ont CA, 2023) the Court of Appeal noted that the existence of live questions of jurisdiction are relevant to the exercise of discretion:[15] That said, the granting of a stay is a discretionary remedy. Jurisdictional concerns can be properly considered in the exercise of that discretion. ... . Vietnamese Association, Toronto v. Duong
In Vietnamese Association, Toronto v. Duong (Div Court, 2023) the Divisional Court considered the SOR for appellate review of discretionary decisions by a judge:[11] The application judge’s exercise of discretion is reversible in this court where the decision is so clearly wrong that it amounts to an injustice, or where the court gave no or insufficient weight to relevant considerations: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27. . Tibollo v Robinson
In Tibollo v Robinson (Div Court, 2023) the Divisional Court considered an appeal of a denial of leave to issue of certificate of pending litigation. On this the court considered the standard of review for a discretionary decision:[10] A lower court’s decision should not be interfered with unless the judge made an error in law, exercised his or her discretion on the wrong principles, or misapprehended the evidence such that there was a palpable and overriding error. . Canada v. Bowker [*IMPORTANT*]
In Canada v. Bowker (Fed CA, 2023) the Federal Court of Appeal considered a Crown appeal from a Tax Court cost award. In these quotes the court considers, and varies from the usual specific deference accorded discretionary decisions, to the more generous and widespread Housen/Vavilov standard:[13] In their submissions on the standard of review, the parties referred to the venerable formula according to which a discretionary decision may be set aside if the tribunal (here, the Tax Court) considered irrelevant factors, failed to consider relevant factors or reached an unreasonable conclusion: appellant’s memorandum of fact and law (MFL) at para. 25, respondent’s MFL at para. 17. The respondent also referred to the appellate standard of review in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (Housen), namely correctness for questions of law and palpable and overriding error for questions of fact or mixed fact and law, unless an extricable question of law is found, in which case correctness applies: respondent’s MFL at para. 16.
[14] In Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 F.C.R. 331 at paragraph 72, this Court held that the standard of review of discretionary decisions was the same as in Housen. Since the discretion exercised in awarding costs does not differ in kind from that exercised in other contexts, it is my view that this discretion should be reviewed on the same basis as other discretionary decisions, that is on the standard set out in Housen.
[15] As a result, the scope of the factors referred to in subsection 147(3) of the Rules is a question of law reviewable on the standard of correctness and the application of those factors to the facts of a case is a question of mixed fact and law, reviewable for palpable and overriding error, except in the case of an extricable error of law in which case, the correctness applies to that error. . Cannon v. Gerrits
In Cannon v. Gerrits (Div Court, 2022) the Divisional Court considered the standard of review regarding a discretionary decision:[19] On questions of law, the standard of review is correctness. On questions of fact, the standard of review is palpable and overriding error. A palpable and overriding error is an error that can be plainly seen and that affected the result, is unreasonable or is unsupported by the evidence. On questions of mixed fact and law, the standard is palpable and overriding error, unless there is an extricable question of law, in which case, the standard of review on that extricable question is correctness. Housen does not directly address the standard of review of exercises of discretion. However, appellate courts in Ontario have generally accepted that decisions involving the exercise of discretion should be paid great deference. An exercise of discretion should only be interfered with where there has been an error of law or where the discretion is exercised on wrong principles or misapprehended evidence: see Elliott Lake (City) (Integrity Commissioner) v. Pearce, 2021 ONSC 7859 (Div. Ct.) at para. 30.
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