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Review - Errors of Law - Exclusion of Evidence. R. v. Brown
In R. v. Brown (Ont CA, 2026) the Ontario Court of Appeal held that when a preliminary hearing judge failed "to consider the totality of the evidence" they committed a jurisdictional error:[6] .... the reviewing judge was entitled to find that in this case the preliminary inquiry judge had committed a jurisdictional error by failing to consider the totality of the evidence. In the course of her decision, the preliminary inquiry judge referred to “the mere fact of having keys to an apartment”, as if the possession of a key was the only evidence of Mr. Brown’s control and access to the apartment, when it was not. And her finding that there was no evidence before her connecting Mr. Brown to the sixth-floor unit was flatly inconsistent with evidence that she failed to address. Significantly, she made no mention in her decision of Mr. Brown’s statement that the key that was used to open the sixth‑floor unit was to “his unit”, or to the surveillance evidence that had tracked him to the sixth floor and circumstantially placed him in the sixth-floor unit throughout the night before. These circumstances strongly suggest that the preliminary inquiry judge failed to consider material and important evidence in coming to the decision that she did and thereby failed to exercise the jurisdiction she was assigned. . Guineau et al v. Hickman
In Guineau et al v. Hickman (Div Ct, 2026) the Divisional Court located a failure to consider admissible evidence as an error of law:[14] As the Supreme Court explained in Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, an error of law may arise where a decision-maker fails to consider evidence that must, as a matter of law, be taken into account: at para. 39. .... . Tenn-Lyn v. Mackenzie Health [administrative context]
In Tenn-Lyn v. Mackenzie Health (Div Court, 2023) the Divisional Court considered an 'ignoring evidence' appeal argument, although here in an administrative context:(c) Failure of the Board to Consider the Appellant’s Witnesses
[62] The Appellant alleges that the HPARB failed to consider the evidence presented by her witnesses supporting her good behavior and communication skills. She called five witnesses who provided testimony about her professionalism, strong communication skills, ethics, work ethic and positive bedside manner. She points, specifically, to the decision’s lack of mention of the testimony of Susy Fraser or any reference to the evidence from other witnesses she called.
[63] Three of the witnesses Dr. Tenn-Lyn called to testify, Rachel Constantine, Susy Fraser, and Wendy Garcia, two of whom were registered nurses, worked with her at a COVID-19 vaccination centre following her departure from Mackenzie Health. A fourth, Brenda Tan, worked with Dr. Tenn-Lyn, briefly, years prior to the revocation of her privileges. The only witness Dr. Tenn- Lyn called who had worked with her in the Hospital’s emergency department was Nurse Musselman, who had not worked with her since 2013. None of these witnesses spoke to the issue of Dr. Tenn-Lyn’s professionalism in an emergency unit after 2014, nor could they refute the many complaints against her between 2014 and 2019.
[64] The evidence of Dr. Tenn-Lyn’s witnesses was not relevant to the issue before the HPARB and the fact that the HPARB did not specifically refer to this evidence does not give rise to a palpable and overriding error. Reliance by a decision-maker “on the evidence of some witnesses over others cannot on its own form the basis of a ‘reasoned belief that the trial judge must have forgotten, ignored, or misconceived the evidence in a way that affected his conclusion’”.[15] [Housen v Nikolaisen, 2002 SCC 33 at para 46]. Additionally, it is not our role, here, “to second guess the weight assigned to items of evidence” by the trier of fact.[16] [Housen v Nikolaisen, ibid at para 23]. . Connor Homes v. Director
In Connor Homes v. Director (Div Ct, 2021) the Divisional Court considered an appeal partially-based on improper exclusion of evidence in an administrative context [paras 60-73].
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