Appeals - Standard of Review (SOR) - Error of Fact. RVR Concrete v. Windsor Wall Forming
In RVR Concrete v. Windsor Wall Forming (Div Court, 2022) the Divisional Court considered policy reasons for the deferential standard of review on fact-findings:
 In Kucyi v. Kucyi, as in other cases, our Court of Appeal provided an explanation of the rationale for why appellate courts ought to show deference to findings of fact made by the trial judge, as follows:. R. v. Panchal
While counsel on an appeal rightly invite the court to carefully examine isolated parts of the evidence, it is the judge at first instance who saw and heard the whole of the narrative who is in the best position to make an assessment of whether an adjournment was sought. To paraphrase this court’s decision in Waxman v. Waxman, 2004 CanLII 39040 (ON CA),  O.J. No. 1765 (Ont. C.A.) at paras. 291-92, strong deference to the factual findings of the trial judge best strikes the balance between the goal of achieving individual justice and the need to preserve the overall effective administration of justice. Merely because an appellate court might view the evidence differently from the trial judge and make different factual findings is not a basis for concluding that the appellate court’s findings will be more accurate and its result more consistent with the justice of the particular case than the result achieved at trial. Thus, appellate courts must defer to all findings of fact drawn by the judge at first instance unless the court is satisfied that the finding was the product of a “palpable and overriding” error. That deference equally applies to inferences from the evidence: See L. (H.) v. Canada (Attorney General), 2005 SCC 25 (CanLII),  1 S.C.R. 401 (S.C.C.).
In R. v. Panchal (Ont CA, 2022) the Court of Appeal cited the principle that credibility findings are accorded high deference on appeal:
 In R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81-82, the Supreme Court recently reiterated the long-standing principle that appellate courts ought to defer to trial judges on their credibility findings:. Karia Estate v. Karia
 … a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence.…Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt.…
 Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.…[Citations omitted.]
In Karia Estate v. Karia (Ont CA, 2022) the Court of Appeal considered the standard of review for fact error:
 “Making a factual conclusion, of any kind, is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review” of palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33,  2 S.C.R. 235, at paras. 24-25. An “appellate court will not interfere with the trial judge's findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”: L. (H.) v. Canada (Attorney General), 2005 SCC 25,  1 S.C.R. 401, at para. 55. .... Tokarz v. Selwyn (Township)
In Tokarz v. Selwyn (Township) (Ont CA, 2022) the Court of Appeal considered when an omission is material:
 An omission is a material error “if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion”: Van de Perre v. Edwards, 2001 SCC 60,  2 S.C.R. 1014, at para. 15; Modern Cleaning Concept Inc. v. Comité paritaire de l’entretien d’édifices publics de la région de Québec, 2019 SCC 28,  2 SCR 406, at para. 70.