Standard of appellate review of facts

Today's Court of Appeal decision in Singer v.  Hamilton (City), 2009 ONCA 559 gives a good description of the rule regarding appeals as to fact. Such appeals are to be allowed only rarely on the standard of palpable and overriding error.

Today's case refers to civil (specifically negligence) appeals but the reasoning applies to all areas of law. The Court holds:

Standard of Appellate Review

[7]               The most frequently cited authority on the standard of appellate review, Housen v. Nikolaisen, [2002] 2 S.C.R. 235, was a negligence case.  In Housen, the plaintiff, who was a passenger in a car that had failed to negotiate a sharp turn, suffered injuries when the car went off a rural road.  The driver had been drinking heavily.  The trial judge found that the plaintiff was 15 percent contributorily negligent in failing to take reasonable precautions for his own safety in accepting a ride from the driver.  He apportioned the remaining joint and several liability 50 percent to the driver and 35 percent to the municipality on the basis that the municipality was negligent in failing to post warning signs on the road.  The Saskatchewan Court of Appeal overturned the trial judge's finding of negligence against the municipality.  The Supreme Court restored the trial judge's decision and emphasized the limited scope of appellate review. 

[8]               In its reasons, the Supreme Court stated the general principles that questions of fact are reviewed on the standard of palpable and overriding error, questions of law are reviewed on the standard of correctness, and a trial judge's finding on a question of mixed fact and law is entitled to deference.  The authors of the majority judgment, Iacobucci and Major JJ., commented particularly on the standard of review in negligence cases.  At para. 29, they said that "[w]hen the question of mixed fact and law at issue is a finding of negligence, this Court has held that a finding of negligence by the trial judge should be deferred to by appellate courts."  At para. 30, they said "[t]his more stringent standard of review for findings of negligence is appropriate, given that findings of negligence at the trial level can also be made by juries."

[9]               Iacobucci and Major JJ. pointed out that the policy reasons for deference were not only limited to the superior vantage point of the trial judge seeing and hearing the witnesses, but also served to limit the cost of litigation and to promote the autonomy of trial proceedings.

[10]          The Supreme Court revisited the standard of appellate review in H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401.  The court again emphasized that appellate courts do not "rehear" or "retry" cases.  Rather, they review for error.  Appellate courts should not interfere merely because they would have reached a different result.  They may only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result.
James Morton
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