Appeals of Fact -- They Won't Work!!!

There is no lack of appeal cases pointing out that appeals as to fact will succeed only in the rarest of circumstance.

This deference to trial courts is based partly on the advantages trial courts have in seeing and hearing the evidence first hand. The deference is also based on a recognition that appeal judges are not superior to trial judges (save for precedent) and so an appellant view of the facts of a case is not of any special value.

Appeal courts are intended to ensure the law remains suitable and not to decide who did what to whom: Housen v. Nikolaisen, 2002 SCC 33.

Yesterday's Newfoundland and Labrador Court of Appeal decision in Humby Enterprises Limited v. Newfoundland and Labrador, 2008 NLCA 21 is a good and recent application of the test for appeals of fact. The Court writes:

[2] The allegations made by the appellants required almost exclusively findings of fact or of credibility and, arguably, in one or two instances involved questions of mixed law and fact. The standard of review throughout was, accordingly, palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235.

Furthermore, as stated by the majority in Housen, at para. 36:

The general rule is that, where the issue on appeal involves the trial judge's interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.

James Morton
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Toronto, Ontario
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