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Appeals - Standard of Review (SOR) - Errors Defined. Narwhal International Limited v. Teda International Realty Inc.
In Narwhal International Limited v. Teda International Realty Inc. (Ont CA, 2021) the Court of Appeal usefully summarizes the limitations of an appeal that are often misunderstood by self-representers:[14] Unfortunately, the appellant misunderstands the function of an appellate court. It is not this Court’s responsibility to conduct a second trial. In the absence of a palpable and overriding error in the application judge’s assessment of the evidence, an appellate court must accept the judge’s findings of fact. A palpable and overriding error is an “obvious error that is sufficiently significant to vitiate the challenged finding of fact”: Longo v. MacLaren Art Centre, 2014 ONCA 526, [2014] O.J. No. 3242, at para. 39. It has also been said that:A palpable error is one which is clear to the mind or plain to see, so obvious that it could be easily seen or known or readily or plainly seen. An overriding error is one which had a sufficiently decisive effect, such that it would justify intervention and review on appeal: 1632093 Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74, 2020 ONCA 843, 328 A.C.W.S. (3d) 66, at para. 1. . Porringa v. Everitt and Lundy
In Porringa v. Everitt and Lundy (Div Ct, 2021) the Divisional Court stated defined the various issues that attract different standards of review:[21] In Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), at para. 32, the court summarized the difference between questions of law, questions of fact and questions of mixed law and fact: “[Q]uestions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.” . Meglis v. Lackan
In Meglis v. Lackan (Div Ct, 2020) the Divisional Court considered the different issues that attract different standards of review:[25] In Canada (Director of Investigation & Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35, the Supreme Court of Canada described the difference between a question of law and a question of fact as follows: Briefly stated, questions of law are questions about what the correct legal test is; questions of facts are questions about what actually took place between the parties; and questions of mixed fact and law are questions about whether the facts satisfy the legal tests. . Kang v. Grant
In Kang v. Grant (Div Ct, 2020) the Divisional Court clarified the key standard of review issues:[22] In Solomon v. Levy, 2015 ONSC 2556 (Div. Ct.), the court summarized the difference between questions of law, questions of fact and questions of mixed law and fact. “[Q]uestions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests”: see Solomon, at para. 32, citing Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.
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