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Appeals - Standard of Review (SOR) - Errors of Law

. Mohamed v. Aviva Insurance Company

In Mohamed v. Aviva Insurance Company (Div Ct, 2021) the Divisional Court considered what constitutes a question of law for appeal purposes:
[8] This Court, in Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507 (Div. Ct.), at para. 28, explained what constitutes a question of law in an appeal:
On a statutory appeal limited to questions of law alone, the court considers whether the decision-maker correctly identified and interpreted the governing law or legal standard relevant to the facts found by the decision-maker. There are limited circumstances in which findings of fact, or the administrative decision-maker’s assessment of evidence, may give rise to an error of law alone for the purposes of appeal. If the adjudicator ignored items of evidence that the law required him or her to consider in making the decision, then the adjudicator erred in law: Canada (Director of Investigation and Research) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] 1 S.C.R. 748 at para. 41. Challenges to the sufficiency or weight of evidence supporting a finding of fact do not give rise to a question of law. An error in law or legal principle made during the fact-finding exercise, however, can give rise to an extricable question of law. A “misapprehension” of the evidence does not constitute an error of law unless 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. 25 and 29. 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 at paras. 24-25). [Emphasis added]
. Carr v. Brown

In Carr v. Brown (Div Court, 2022) the Divisional Court held that a fairness breach was an error of law, and thus within the court's jurisdiction under RTA 210:
[7] Issues of procedural fairness do fall within this Court’s jurisdiction. A failure on the part of the Board to ensure that a hearing is procedurally fair is an error of law: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 22, Tipping v Coseco Insurance Co, 2021 ONSC 5295, at para. 41, 2276761 Ontario Inc. v. Overall, 2018 ONSC 3264 at para. 8.
. Law Society of Saskatchewan v. Abrametz

In Law Society of Saskatchewan v. Abrametz (SCC, 2022) the Supreme Court of Canada commented on standard of review for abuse of process, here in an appeal case:
[30] Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness.
. Peel Standard Condominium Corporation No. 779 v. Rahman

In Peel Standard Condominium Corporation No. 779 v. Rahman (Div Ct, 2021) the Divisional Court held that issues of procedural fairness are issues of 'law', which allows them to be advanced on appeal:
[17] In Tipping v. Coseco Insurance Company, 2021 ONSC 5295 (Div. Ct.), Justice Favreau found that judicial review is not available, absent exceptional circumstances, where there is a statutory appeal not pursued by the applicant. Favreau, J. held at para. 36:
Judicial review is a discretionary remedy which is not available where there is an adequate alternative remedy: Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561. Absent exceptional circumstances, the court will dismiss an application for judicial review where an applicant has not exhausted all alternative remedies: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, at paras. 68-70. The Divisional Court has repeatedly dismissed applications for judicial review where a party has not pursued a right or appeal or other available remedies: see, for example, Stentsiotis v. Social Benefits Tribunal, 2011 ONSC 5948; Worden v. Ontario Municipal Board, 2014 ONSC 7247; Hsieh v Ministry of Community and Social Services et al, 2017 ONSC 3094; and Vangjeli v. WJ Properties, 2019 ONSC 5631.
[18] In Tipping v. Coseco Insurance Company the court held at para. 41 that: “Procedural fairness and natural justice, including allegations of bias, are questions of law. An appeal from the LAT on those issues is therefore an obvious adequate alternative remedy.” The same applies to an appeal from the CAT. In Savic v. College of Physicians and Surgeons of Ontario, 2021 ONSC 4756 (Div Ct), the court dismissed a judicial review application on the grounds that the applicant had failed to pursue a statutory appeal. The court held at para. 35 that an issue of procedural fairness can be raised on appeal, and allegations of procedural unfairness do not constitute an exceptional circumstance.
. Hudson Bay Railway Company v. Rosner

In Hudson Bay Railway Company v. Rosner (Fed CA, 2021) the Federal Court of Appeal considered what constituted an error of law:
[20] In my view, the central issues concern whether the Agency erred in law. The Supreme Court in Housen, albeit writing in the context of negligence law, described an error of law as including the application of an incorrect legal standard, a failure to consider a required element of a legal test, or the mischaracterization of the standard (Housen at paras. 36-37).
. Mubarak v. Toronto Community Housing Corporation

In Mubarak v. Toronto Community Housing Corporation (Div Ct, 2021) the Divisional Court stated succinctly the question of law standard of review:
[31] 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 explained that “questions of law are questions about what the correct legal test is”.


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