Simon's Megalomaniacal Legal Resources

Appeal - SOR - Discretion

. 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.