It is often said that in a court battle there is a winner and a loser. The court must decide which facts and evidence it prefers and which party the law favours. After a decision is made by the judge who heard the application or trial, a party may “appeal” the decision to a higher court. But an appeal is not a do-over or a second kick at the can. An appellate court is not there to re-hear the case, as demonstrated in Macpherson v. Wyszatko Estate, 2025 ONCA 576 (CanLII) (“Wyszatko Estate”).
In Wyszatko Estate the Ontario Court of Appeal found that the appellant’s appeal (with one exception) was essentially a request for a redetermination of the facts. On appeal the errors claimed by the appellant could be errors of fact, errors of law, or errors of mixed fact and law. When errors of fact are alleged, as in Wyszatko Estate, the “standard of review” is that of palpable and overriding error. The standard of review is akin to the level of error made by the lower court. A palpable and overriding error is a high bar and the appellate court cannot simply disagree with the lower court’s decision even if the appellate court would have arrived at a different conclusion.
One of the arguments raised by the appellant was that the application judge erred in ordering that he pay occupation rent when there was no evidence before her on the proper quantum. The Court of Appeal disagreed and found that it was open to the application judge to make the finding, even in the absence of evidence about the appropriate quantum. Furthermore, the application judge established how the parties would determine the appropriate quantum following the release of her decision. There was no error in the application judge’s findings or process.
In Wyszatko Estate, the Court of Appeal noted that the formal judgment taken out by the parties after the application judge’s decision ordered a loan to be paid by the estate and the appellant personally. The appellant was ordered to pay personally even though the application judge’s decision found that the loan was the estate’s liability only. The Court of Appeal held that the order should be varied to remove the appellant’s personal liability. This did not amount to an error by the application judge, however. It was the parties who drafted and agreed to the language of the formal judgment.
Finally, the Court of Appeal dismissed the appellant’s argument that the application judge erred in ordering costs against him. In a reminder about the discretionary nature of costs, at para 14 the Court of Appeal stated that:
The fixing of costs is a discretionary function and trial judges are in the best position to determined both entitlement to costs and the quantum thereof. Leave to appeal costs is granted sparingly and an appellate court will only intervene if the judge made an error when determining costs of the quantum of costs is unreasonable or wrong: 100 Bloor Street West Corporation v. Barry’s Bootcamp Canada Inc., 2025 ONCA 447, at para. 70.
An appeal of the application or trial judge’s decision is not a do-over. The application or trial judge has wide latitude in the exercise of his or her discretion, absent the level of error required for appellate intervention.
