Thursday Thinkpiece: Gelowitz on Appellate Review

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by Mark Gelowitz (see also the author’s website for the book)
Toronto: LexisNexis Canada, 2012

Excerpt by the author: Chapter 2, pp. 67-69

1. Standards of Appellate Review

In recent years, the Supreme Court of Canada has refined its approach to appellate standards of review by virtue of two fundamental decisions: Housen v. Nikolaisen and H.L. v. Attorney General of Canada. In each of these judgments, the Court has sought to provide clarity with respect to a number of issues surrounding the scope of appellate powers, particularly insofar as the distinctions between questions of fact and questions of law are concerned.

However, while the underlying legal principles may have been clarified, the precise manner in which these principles will be applied in a given appeal is not always self-evident. As one commentator has written, “[a]t first glance, it is not easy to determine from Canadian case law what the appropriate standard of review ought to be for a given issue on appeal. …[P]rogress toward unification and simplification of various older standards of review has been made in recent years, but largely on a piecemeal basis, with problematic elements of old standards rectified bit-by-bit in a series of successive decisions.” Indeed, this tension is evident even on the face of the Supreme Court of Canada’s decision in Housen v. Nikolaisen, where a strongly divided court sought to articulate a restatement of the applicable standards of appellate review in Canada. Paul Perell – now a judge of the Ontario Superior Court of Justice – commented on the tension inherent in the reasoning in Housen:

Both the majority and the minority in the Supreme Court purported to apply the established case law about appellate review and each side robustly accused the other of not understanding or properly applying the law. The tone of all the judgements is tough and direct … It is ironic that a leading case should have such contentious and divided judgments.

This irony notwithstanding, the majority’s judgment in Housen has unquestionably emerged as the leading Canadian case, providing the fundamental framework for any analysis of appellate standards of review. As a foundational principle, the Supreme Court of Canada affirmed in Housen the limited role of an appellate court, as had been previously articulated in Underwood v. Ocean City Realty Ltd.:

The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.

The Supreme Court explained that this circumscribed approach to appellate review is rooted in the importance of finality in litigation, rather than any notion “that appellate court judges are somehow smarter and thus capable of reaching a better result. Their role is not to write better judgments but to review the reasons in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge.”

Beyond this broad principle of appellate restraint, however, the degree of deference that will ultimately be exhibited in respect of lower court decisions remains largely contingent upon the nature and scope of the particular findings at issue.

(a) Questions of Law: Correctness

In Housen, the Supreme Court of Canada expressly adopted the correctness standard for the appellate review for questions of law. That is, an appellate court need not be deferential in reviewing questions of law or legal determinations by a lower court or tribunal. As the majority in Housen explained, there are two primary justifications for the application of a correctness standard in the context of appellate review of legal questions:

First, the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations. The importance of this principle was recognized by this Court in Woods Manufacturing Co. v. The King, [1951] S.C.R. 504, at p. 515.


A second and related reason for applying a correctness standard to matters of law is the recognized law-making role of appellate courts…


Thus, while the primary role of trial courts is to resolve individual disputes based on the facts before them and settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. In order to fulfil the above functions, appellate courts require a broad scope of review with respect to matters of law.

(b) Direct Findings of Fact: “Palpable and Overriding Error”

The greatest functional distinction between a trial and an appellate tribunal is the former’s responsibility to make findings of fact. Appellate courts traditionally treat findings of fact with deference in recognition of the advantage the trier of fact holds, having seen and heard the witnesses. Until recently, the applicable standard for overturning findings of fact on appeal was contrasted on the basis of findings based upon the credibility of witnesses and findings based upon inferences from established facts. However, as discussed below, the Supreme Court’s recent commentary appears to have largely displaced this distinction.

It has long been the rule in English and Canadian appellate courts that a finding of fact based upon the credibility of witnesses who have testified before the trier of fact ought not to be overturned unless it is determined to be manifestly wrong. A classic statement of this principle is to be found in the decision of the House of Lords in S.S. Hontestroom (Owners) v. S.S. Sagaporack (Owners), […]

Canadian courts have consistently adopted a similarly deferential approach to the appellate review of factual findings, as illustrated most notably by the Supreme Court of Canada’s judgment in Stein v. The “Kathy K”. […] Ritchie J., speaking for the Court, reviewed a number of English authorities and set out the test for reviewing findings of fact in the following terms:

These authorities are not to be taken as meaning that the findings of fact made at trial are immutable, but rather that they are not to be reversed unless it can be established that the learned trial judge made some palpable and overriding error which affected his assessment of the facts. While the Court of Appeal is seized with the duty of re-examining the evidence in order to be satisfied that no such error occurred, it is not, in my view, a part of its function to substitute its assessment of the balance of probability for the findings of the judge who presided at the trial.

The “Kathy K” principle has been repeatedly applied by the Supreme Court of Canada and other Canadian appellate courts, most recently in Housen. Notably, the principle has been applied in the context of both expert evidence and factual findings made on the basis of testimony of non-expert witnesses.

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