Simon's Legal Resources

Review - Errors of Law

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COMMENT

I use the term 'review' to apply to all 'second-cracks' at legal decisions: ie. appeals (from both administrative and court hearings), judicial reviews, administrative reconsiderations - and even court re-openings and set-asides. 'Errors of law' - unsurprisingly - can have application to any review scenario.

A canvass of the below-listed errors of law shows that they generally address the same things: ie. procedural and evidentiary errors, in whatever procedural regime you are located in. They all occur in the one basic common law model we have for fact-finding and legal decision-making: the 'hearing' (also called trial in court contexts). This fundamental 'hearing' model, despite it's many variations in different procedural regimes, shares the same elements - and thus the same predictable and consistent errors - ie. 'errors of law'.

That said, the term 'errors of law' is today less-favoured - it is a term more comfortable in the court (both civil and criminal) context. However, with the growth of 'administrative' law (ie. tribunal-heard law - eg. the 'Landlord and Tenant Board') the newer term of 'procedural fairness' (or just Fairness) rivals it in referring to the same basic thing. This change in terms is a function of the historical development of Canadian law, most recently and particularly the shift away from a focus on 'error' in judicial review law towards 'reasonableness' as the standard of review (SOR) [Canada (Minister of Citizenship and Immigration) v. Vavilov (SCC, 2019)].

At that much larger 'fairness' link, you will find similiar - or even identical - grounds of review listed, primarily in the administrative context. This is a reflection of the 'fairness' child growing up. In fact, you can find 'fairness' issues - identified by that express term - cited in the 'older' contexts of civil litigation, criminal, insolvency and further legal areas - demonstrating a bleeding of the new term where the old was before.

Also falling into disfavour is the term 'natural justice', which can be seen as the counterpart of administrative 'fairness' from this older legal world. 'Natural justice' is essential the 'parent' of procedural fairness, and traditionally comprises the related issues of 1. avoidance of bias in adjudicators and judges, and 2. ensuring that all parties have the right to be heard ('audi alteram partem'). Today the second of these ['audi'] can be largely identified with 'fairness', with the first ['bias'] generally being considered a separate category.

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CASES

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Errors of Law at Hearing/Trial

Review - Errors of Law - Failure to Engage With Party's Position
Review - Errors of Law - Issue Raised by Judge/Adjudicator Alone
Review - Errors of Law - Make Objections Promptly
Review - Errors of Law - Trial Management Powers

PROCEDURAL FAIRNESS [this is the main 'procedural fairness' topic which catalogs many hearing/trial errors]

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Errors of Law Apparent on Reading Reasons for Decision

Review - Errors of Law - Court's Failure to Test Issue
Review - Errors of Law - Uneven Scrutiny (+)
Review - Errors of Law - Inconsistent Conclusions
Review - Errors of Law - Ineffective Assistance of Counsel (+)

REASONS [this is the main 'reasons' topic which catalogs many 'reasons for decision' errors]

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Errors of Law in the Treatment of Evidence

Review - Errors of Law - Misapprehension of Evidence (+)
Review - Errors of Law - Fact-finding in the Absence of Evidence
Review - Errors of Law - Exclusion of Evidence
Review - Errors of Law - Failure to Make Credibility Findings