Monday, July 29, 2013

Deference to findings of fact

Barclays Bank PLC v. Devonshire Trust, 2013 ONCA 494:

[90]       Second, findings of fact by the trial judge attract deference on appeal and are only reviewable by this court if they reveal palpable and overriding error: Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.), at para. 291. This standard applies to all factual findings, whether based on credibility assessments, the weighing of competing evidence, expert evidence, or the drawing of inferences from primary facts: see Waxman, at paras. 359-60. Findings of fact grounded in credibility assessments are particularly difficult to disturb on appeal: see Housen v. Nikolaisen, 2002 SCC 33, 2 S.C.R. 235, at para. 24. The trial judge was free to accept some, none, or all of the evidence of the Barclays witnesses, and he gave adequate reasons for rejecting much of it.

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