An appeal court must not interfere with a trial judge’s findings of fact unless, in reaching them, the judge has committed a palpable and overriding error

Abraham v. Coblenz Holdings Ltd.,  2013 BCCA 512 is a good current source for the principle that an appeal court must not interfere with a trial judge’s findings of fact unless, in reaching them, the judge has committed a palpable and overriding error:


[10]        As is well known, this Court is not a court of first instance. This Court must not interfere with a trial judge’s findings of fact unless, in reaching them, the judge has committed a palpable and overriding error. The Court will interfere where the error is manifest or plainly seen, or where, for example, the judge has made findings of fact unsupported by any evidence, has ignored conclusive or relevant evidence, misunderstood the evidence or drawn erroneous conclusions from it: see, for example, Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] 1 S.C.R. 114 at 121. A palpable and overriding error is one that is “so obvious that it can easily be seen or known” and which must or may well have altered the result: see, Housen v. Nikolaisen, 2002 SCC 33 (CanLII), 2002 SCC 33, [2002] 2 S.C.R. 235 at para. 5.

[11]        In short, this Court is not entitled to interfere with a trial judge’s finding of fact because it takes a different view of the evidence. Rather, in the words of Mr. Justice Lambert in Van Mol (Guardian ad litem of) v. Ashmore, 1999 BCCA 6 (CanLII), 1999 BCCA 6 at para. 13, leave to appeal refused, [1999] S.C.C.A. No. 117, the “task is to decide whether, on the basis of all the evidence, there was a body of evidence which was properly, judicially, and reasonably capable of supporting the conclusion which the trial judge reached”.