Monday, June 17, 2013

Criteria for overturning discretionary decisions

Mission Creek Mortgage Ltd. v. Angleland Holdings Inc.,  2013 BCCA 281 holds a discretionary decision should be overtruned only where the decision was clearly wrong or the court of first instance gave insufficient weight to one or more relevant considerations:

[53] This court can interfere with the discretion exercised by the chambers judge only as discussed by Tysoe J.A. in Dhillon v. Pannu, 2008 BCCA 514 (CanLII), 2008 BCCA 514:

[26] The order under appeal was a discretionary order. The appellate standard of review in respect of discretionary orders has been expressed in slightly varying ways. One of the expressions of the standard of review is contained in the authority primarily relied upon by the plaintiff on this appeal, House of Sga’nisim v. Canada (Attorney General), 2007 BCCA 483 (CanLII), 2007 BCCA 483, 286 D.L.R. (4th) 557 (“Chief Mountain”):

[20] In order to succeed on an appeal of an order made in the exercise of discretion, this Court must be satisfied that the trial judge erred in the exercise of his discretion in that no weight or not sufficient weight has been given to relevant considerations: Friends of the Old Man River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3 at 76-77, 88 D.L.R. (4th) 1. In other words, this Court will not interfere with the exercise of discretion simply because we might have exercised the discretion in a different fashion.

[27] In the relatively recent decision of Named Person v. Vancouver Sun, 2007 SCC 43 (CanLII), 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 123, the Supreme Court of Canada adopted the expression of the standard of review contained in Elsom v. Elsom, 1989 CanLII 100 (SCC), [1989] 1 S.C.R. 1367 at 1375, 37 B.C.L.R. (2d) 145, that an appellate court should interfere with the exercise of discretion by a judge only if he “misdirects himself or if his decision is so clearly wrong as to amount to an injustice”.

[28] An appellate court should not substitute its opinion in place of the opinion of the trial judge or chambers judge under the guise that the judge did not give sufficient weight to a relevant consideration. It is incumbent upon an appellant to demonstrate error on the part of the judge, and an appellate court should not interfere with the exercise of discretion by a judge simply because the judge failed to mention a relevant consideration: see Garcia v. Osborne (1996), 72 B.C.A.C. 101 at para. 31, and E.T. v. K.H.T. 1996 CanLII 2625 (BC CA), (1996), 27 B.C.L.R. (3d) 347, 83 B.C.A.C. 267 at para. 29 (Lambert J.A. dissenting in the result). If the judge’s decision is not so clearly wrong as to amount to an injustice, it must be manifest from the judge’s reasons that he or she misdirected himself or herself, or gave no weight, or insufficient weight, to a relevant consideration.

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