Inconsistent factual findings ground a good appeal

Appeals from civil decisions where the court's decision is largely factual very seldom succeed.

Considerable deference is given to factual findings at trial. However, where inconsistent factual findings are made on a central issue a good appeal will exist.

This week's decision in Trajkovich v. Ontario (Natural Resources), 2009 ONCA 898 is a good source for the principle that inconsistent factual findings are problematic:

     To summarize, I conclude that the trial judge, in finding the appellant negligent, must have implicitly concluded that the appellant struck his head on a sandbar.  However, in dismissing the action, the trial judge also found that he could not decide whether the appellant hit his head on a sandbar rather than the bottom of the lake.  It was not open to the trial judge to make both findings.  To make such inconsistent findings on the central issue of factual causation is an error of law requiring appellate intervention: see R. v. D.R., [1996] 2 S.C.R. 291 at para. 50.
James Morton
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