When a decision does not go your way, it can be tempting to march straight to the Ontario Court of Appeal to…well, appeal the decision. However, the Ontario Court of Appeal is not an easy second kick at the can. The court will only review a decision if there is a question of fact, law, or mixed fact and law that meets the standard of review.
Questions of Fact
In law, a question of fact refers to an issue or dispute that revolves around specific events, circumstances, or conditions that occurred or existed in the fact. To make a finding of fact, the judge will evaluate and weight the evidence and assess the credibility of witnesses. This process is generally reserved to the court that first hears the matter: an appellate court will not interfere with the trial judge’s findings of fact unless it can be plainly identify an error that is shown to have affected the result, also known as a “palpable and overriding error”.
Questions of Law
A question of law is an issue that requires the interpretation, analysis and application of legal principles, statutes, or regulations. Questions of law focus on the legal significance and implications of facts. They involve determining the relevant laws, rules, or precedents that govern a particular situation and how they should be applied to reach a legal conclusion. For example, whether a person is capable of managing their property is a finding of fact. If that person had entered into a contract when they were incapable, it is a question of law as to whether or not that contract should be upheld.
At the Ontario Court of Appeal, questions of law are reviewed on a standard of correctness. This means the court will substitute its own judgment and decide the legal issue independently, without deferring to the lower court’s decision. The court will consider legal arguments, review relevant case law, and apply its understanding of the law to reach a conclusion.
Questions of Mixed Fact and Law
A question of mixed fact and law is exactly what it sounds like. Often, questions of mixed fact and law arise in situations where the conclusion depends on both the factual findings and the legal principles that govern those facts. In Ontario, questions of mixed fact and law are reviewed for “palpable and overriding error” unless an extricable error of law can be identified for correctness review.
Since the court will only review decisions that meet the standard of review it is important to review the decision handed down by the trial court carefully to determine if there is an error, or multiple errors, that arise to the standards outlined above.
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As a friendly reminder, Justin will be co-chairing an Advocate’s Society event in December:
The Advocates’ Society
Mediation and Arbitration: Transforming Estates Law
December 2, 2024 – 1:00 pm to 4:00 PM (ET)
Med-Arb is a hybrid option that combines both mediation and arbitration. The parties first attend mediation to try to negotiate a settlement. If a settlement is not reached, or if some issues are settled while some remain unresolved after the mediation, the parties then proceed to an arbitration with the mediator acting as the arbitrator. The arbitrator renders a binding arbitral decision of the issue or issues that were raised, but not settled, at the mediation. Med-Arb is an under-utilized relatively new concept in estates disputes but is attracting interest among lawyers and their clients. Med-Arb is often quicker, more efficient, and cheaper.
Check out The Advocates’ Society program at: Mediation and Arbitration: Transforming Estate Lawyer, co-chaired by Justin de Vries and Ian Hull.
