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>>>>>>>>>> 'Errors of Mixed Fact and Law': Doubting Fundamentals in Appellate Standard of Review [20 August 2026]

Palpable and Overriding Error

For any readers to whom Vavilov means anything, 'mixed fact and law' is the category that applies to appellate issues that aren't quite 'law', and aren't quite 'fact'. They are ones of ... well, 'mixed fact and law' [Vavilov (SCC, 2019)], and they share the same appellate standard of review as do issues of fact:

[37] ... Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37. ...

'Palpable and overriding error' is admittedly a tough standard for appellants. It has been characterized recently by Stratas JA [Patel v. Dermaspark Products Inc. (Fed CA, 2025), para 11] as:

[11] Truly, palpable and overriding error is a tough standard:

Palpable and overriding error is a highly deferential standard of review: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401; Peart v. Peel Regional Police Services (2006), 2006 CanLII 37566 (ON CA), 217 O.A.C. 269 (C.A.) at paragraphs 158-59; Waxman, [2004 CanLII 39040 (ON CA), 186 O.A.C. 201 at paragraphs 278-84]. “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.

To accomodate it's 'mixed' nature of this error, the law (as it so often does) anticipates exceptions - in this case the recognized exception is that of the 'extricable question' - that is [Vavilov, supra; Patel v. Dermaspark Products Inc. (Fed CA, 2025), para 7]:

[7] In some cases, legal questions predominate or fundamentally taint the question of mixed fact and law. In the parlance of appellate standards of review, this is called "“an extricable question of law”". When there is an extricable question of law, the appellate court can examine that question of law and decide it on a standard of correctness—i.e., without any deference at all to the first-instance court.

Practically Addressing a 'Mixed Fact and Law' Error Issue

Practically, this leaves the appellant-litigator with two main options when appealing a mixed-fact related issue: (1) satisfying the palpable or overriding error test (in which case, assuming the error is material, some degree of success on the appeal), or (2) convincing the appeal court that the error is truly an 'extricable legal' one (in which case, the 'easier' standard of 'correctness' applies to the issue).

Examples of the first option [(1) 'palpable and overriding error'] have been stated as [Patel v. Dermaspark Products Inc. (Fed CA, 2025), para 13]:

[13] Examples of things that can qualify under this difficult-to-meet standard include a number of different types of errors: "“obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received [not] in accordance with the doctrine of judicial notice [""R. v. Spence, ""2005 SCC 71"", ""[2005] 3 S.C.R. 458""], findings based on improper inferences [""Pfizer Canada Inc. v. Teva Canada Limited, ""2016 FCA 161"", ""400 D.L.R. (4th) 723"" at paras. ""168-170]"" or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence”": Mahjoub at para. 62. But, as said before, only errors on central points that can change the result of the case will qualify.

As for the second option [(2) 'extricable legal questions'], all that Vavilov says to assist us in deciphering it's meaning is that such errors, in order to 'count' as extricable, are "readily extricable" [Vavilov, para 37]. Later cases have posited examples of such 'extricable questions' as:

• "Examples of extricable questions of law include the application of an incorrect principle; the failure to consider a required element of a legal test; the failure to consider a relevant factor; or a question regarding the formation of a contract" ...
  
  [BNSF Railway Company v. Greater Vancouver Water District (Fed CA, 2025), para 166];
  
  
• "A correctness standard of review applies to “extricable questions of law” that arise in the interpretation process, such as “the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor”: ... "
  
  [Wiener Städtische Versicherung AG Vienna Insurance Group v. Infrassure Ltd. (Ont CA, 2025), para 45];
  
  
• "There are limited circumstances in which findings of fact, or the adjudicator’s assessment of evidence, may give rise to an extricable error of law: see Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337 (Div. Ct), at para. 28, aff’d 2022 ONCA 446, rev’d on other grounds, 2024 SCC 8, 489 D.L.R. (4th) 191. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. However, a misapprehension of or failure to appreciate the evidence may constitute an error of law if the failure is based on a wrong legal principle: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at paras. 29, citing R. v Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286, at p. 295. It is an error of law to make a finding of fact for which there is no supporting evidence: J.M.H, at para. 25, citing R. v. Schuldt, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, at p. 604. It is an error of law to make a finding of fact on a material point where the factual finding is based solely on (a) no evidence, (b) irrelevant evidence, or (c) an irrational inference: Johannson v. Saskatchewan Government Insurance, 2019 SKCA 52, 93 C.C.L.I. (5th) 228, at paras. 24-25."
  
  [Achaia-Shiwram v. Intact Insurance Co. (Div Court, 2024), para 19]
  
  
• Here the court enumerates several examples of 'extricable errors' as issues of statutory interpretation, and adds:

  [17] More recently, in Bell Canada v. British Columbia Broadband Association, 2020 FCA 140 at paras. 49-51, the Court noted that a question of law may also be factually infused, as in the case of procedural fairness. In all cases, it is the true substance of the question on appeal that governs, and not the form by which it is expressed. Examination of the notice of appeal and the memoranda of fact and law assist in determining the essential character of the issue.

  [Neptune Wellness Solutions v. Canada (Border Services Agency) (Fed CA, 2020), para 16]
  
  
• Importantly, the SCC last year (in a contractual interpretation context) cautioned against over-reaching for extricable questions:

  [para 28] ... The search for an extricable question of law is, in my view, not consistent with Sattva’s holding that the interpretation of contracts and agreements are mixed questions of law and fact and that extricable questions of law will be “rare” and “uncommon” (para. 55; Corner Brook (City) v. Bailey, 2021 SCC 29, [2021] 2 S.C.R. 540, at para. 44). Housen expressly admonished that courts should “be cautious in identifying extricable questions of law in disputes over contractual interpretation” because ascertaining the objective intention of the parties, which is the prevailing goal of contractual interpretation, is an “inherently fact specific” exercise (Sattva, at paras. 54-55, citing Housen, at para. 36). The subsequent tendency of some appellate courts to use Sattva to elevate the standard of review, when it was intended to do the opposite, is to be resisted (the Hon. D. Brown, “Has Sattva spawned an era of less appellate deference?” (2023), 41:4 Adv. J. 26, at p. 27).
  
  ....
  
  [33] In conclusion, the standard of review for appellate courts concerning the “express agreement” requirement under s. 53 does not deviate from the general rule set down by this Court in Sattva — questions of mixed fact and law remain susceptible to a deferential standard of review, even where the analysis necessarily implicates implied statutory conditions. While errors on extricable questions of law, if properly identified, can be the basis for correctness review, reviewing courts should approach the task of identifying such errors cautiously, and with an eye towards the relative competencies of trial and appellate courts. However, as I explain below, the Court of Appeal did not identify errors on extricable questions of law that justified the application of the standard of review of correctness.

  [Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc. (SCC, 2024), paras 28,33]

The Problem

I pose to the reader that these two criteria of 'palpable and overriding error' and 'extricable question of law' are - when considered in detail - arguably the same. They both comprise a 'bundle' of ill-defined, 'logical-legal' errors.

Let's explore. Can one truly distinguish between (firstly) a 'palpable and overriding error'?:

. "“obvious illogic in the reasons (such as factual findings that cannot sit together), findings made without any admissible evidence or evidence received [not] in accordance with the doctrine of judicial notice [""R. v. Spence, ""2005 SCC 71"", ""[2005] 3 S.C.R. 458""], findings based on improper inferences [""Pfizer Canada Inc. v. Teva Canada Limited, ""2016 FCA 161"", ""400 D.L.R. (4th) 723"" at paras. ""168-170]"" or logical error, and the failure to make findings due to a complete or near-complete disregard of evidence”

and (secondly) an 'extricable question of law':

. "the application of an incorrect principle; the failure to consider a required element of a legal test; the failure to consider a relevant factor; or a question regarding the formation of a contract" .

It's easy to distinguish these from pure 'fact errors' - ie. the judge hasn't mistakenly called a red car green. These are (both categories) almost 'logical' errors, they are errors in the sense that an improper legal process was followed.

But the fundamental problem remains - they are the same thing as concepts, despite their different legal function - one as satisfying the 'test' for palpable and overriding error and the other for excepting the case from the test at all. The law's statutory interpretation doctrine against redundancy (aka 'rule against tautology') is openly offended.

Fact-Related Legal Errors

There's more.

In a closely-related area - that of appeals restricted to 'questions of law', we see a similar and highly-relevant doctrine at work. There, limited appeals arise in numerous statutory contexts - eg. RTA s.210(1); LATA s.11(6); Crown criminal appeals and more - which by their very nature rule out any 'mixed fact and law error'-involvement (assuming no added 'Yatar' judicial review). That is, you can't consider an issue of 'mixed fact and law' when your appeal is expressly limited by statute to legal issues.

In this context, we see what the arising of what can be called the 'fact-related legal error'. Appellants - seeking to meet the appeal requirement of having a 'legal issue', strive with what they have - which in some cases is a fundamentally fact-related scenario. ... Where have we seen this before?

'Fact-related legal errors' are a further recurrence of the same conceptual content as the above examples of 'extricable legal questions' and 'palpable and overriding errors', though here the origin of the inquiry is whether we have a fact-related error is so 'bad' that it constitutes a legal error.

Again, let's explore:

• "In Metropole Management (Toronto) Corporation v. Aly (Div Court, 2024) the Divisional Court cited fact situations which can constitute legal errors, here for SOR purposes:

  [18] .... if the Board made a finding of fact for which there is no supporting evidence, that would be a legal error: R. v. J.M.H., 2011 SCC 45, at para. 25. Similarly, it would also be an error of law for the Board to make a finding of fact based solely on irrelevant evidence or to make an irrational inference from the evidence."

  [Metropole Management (Toronto) Corporation v. Aly (Div Court, 2024), para 18];
  
  
• "[43] ... Exceptionally, a trial judge’s alleged shortcomings in assessing the evidence may constitute an error of law: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, affirmed in Hodgson, at para. 34. This may occur when a trial judge assesses the evidence based on a wrong legal principle, makes a finding of fact for which there is no evidence, or fails to consider all of the evidence on the ultimate issue of guilt or innocence: Hodgson, at para. 35."
  
  [R. v. Attard (Ont CA, 2024), para 43];
  
  and lastly (at least in terms of examples), but quite vigorously - we have Stratas JA again:
  
  
• "[11] .... Just about anything that can be raised in a separate application for judicial review can be raised in a statutory appeal where only "“questions of law”" can be raised:

  . Alleged legal errors by the administrative decision-maker, whether they be found in the Constitution, legislative provisions, common law principles or administrative law principles. This includes questions of law that are extricable from (i.e., taint or dominate) questions of mixed fact and law: Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573; Canadian National Railway Company v. Canada (Transportation Agency), 2016 FCA 266 at para. 22; Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151 at para. 15.
  
  . Procedural fairness concerns: Emerson Milling at paras. 18-19.
  
  . Sufficiency of reasons or inadequate reasons on a key point: Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 at paras. 21-33.
  
  . Errors that seem factual but are really legal errors or failures to follow legal principles governing facti-finding. For example, a decision-maker that wrongly takes judicial notice (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458), wrongly finds facts without any supporting evidence (Canada (Border Services Agency) v. Danson Décor Inc., 2022 FCA 205 at para. 14), wrongly draws a factual inference or finds facts contrary to the law of evidence (e.g., Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161 and the cases cited therein; Garvey v. Canada (Attorney General), 2018 FCA 118 at para. 6), or wrongly finds facts contrary to a statutory provision (Walls v. Canada (Attorney General), 2022 FCA 47 at para. 41; Page v. Canada (Attorney General), 2023 FCA 169 at para. 79). [italicization is mine: SS]

  [Best Buy Canada Ltd. v. Canada (Border Services Agency) (Fed CA, 2025), para 11].

Perhaps 'fact-related legal errors' drawn from this 'question of law' context may be more in the nature of evidence-process errors - perhaps not. But again they reflect fundamental 'logical' errors - errors in the sense that an improper legal process was followed.

Conclusion

So, to the short list of similar (and perhaps identical) bundles of subject-matter [1. extricable legal questions, and 2. palpable and overriding errors], we can now add: 3. 'fact-related legal error'. These three concepts, drawn from their varied contexts, are all doctrinal means by which we can circumvent the appellate restrictions that appellant's face - by either the appellate standard of review or by express statutory limitation. And - if I am right - they are all substantially the same in content.

An appellant facing this limitation, in any of it's three configurations, needs the same substantial solution. They can:

• satisfy the palpable and overriding 'test' (and thus directly find a trial/hearing error);
  
  
• argue for and find an extricable legal question (and this achieve the 'correctness' standard of review), and
  
  
• similarly argue for and find a 'fact-related legal error' (and again achieve the 'correctness' standard of review).

Again, the law has a statutory interpretation doctrine against redundancy (aka 'rule against tautology'), but that may not be the worst of our problems. The entire appellate standard of review 'edifice' - with it's central 'mixed fact and law error' category - may be screamingly flawed.

Can there really be only two errors - fact and law, nothing in between? What's wrong with this picture?