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Federal Court - Discretion. Boulachanis v. Canada
In Boulachanis v. Canada (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against an order "granting the respondent’s motion to dismiss the appellant’s action for undue delay pursuant to Rule 167 of the Federal Courts Rules".
Here the court considers the appellate SOR for discretionary orders:[5] Discretionary orders rendered by Federal Court judges are reviewable under the appellate standard of review, meaning that questions of law are reviewable on the correctness standard whereas findings of fact and findings of mixed fact and law can only be overturned in the presence of a palpable and overriding error: Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at para. 79; Housen v. Nikolaisen, 2002 SCC 33 at para. 1. A palpable error is one that is obvious, whereas an overriding error is one that goes to the very core of the outcome of the case: Qualizza v. Canada, 2025 FCA 222 at para. 9. The standard of palpable and overriding error is highly deferential and is not easily met: Ibid; Western Oilfield Equipment Rentals Ltd. v. M-I L.L.C., 2021 FCA 24, at para. 11.
[6] Our Court has stated that a decision to dismiss the proceeding instead of imposing another sanction under Rule 167 is largely a question of mixed fact and law: Sweet Productions at para. 24. We find this to be true in the present case.
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[8] We have not been satisfied that the Federal Court has committed a reviewable error. While the appellant alleges several extricable errors of law—namely distorting, misapprehending and misconstruing the test—we find that the Federal Court identified and applied the correct test. Ultimately, the appellant’s arguments are tantamount to a request to reevaluate the evidence before the Federal Court. An appeal from the Federal Court’s discretionary order is not a redo: Tymchyshyn v. Canada (Attorney General), 2026 FCA 26 at para. 9). Absent a palpable and overriding error, this Court does not reevaluate or reweigh the evidence dealt with by a case management judge in their application of the tripartite test. We find no such error in the Federal Court’s extensive and detailed reasons.
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