Palpable and Overriding errors

In Housen v. Nikolaisen (2002) 2 S.C.R. 235, at para. 25, the Supreme Court stated with regard to the standard to be applied on appeal of findings of fact, “palpable and overriding error” was the correct standard. The court stated as follows:

It is our view that the trial judge enjoys numerous advantages over appellate judges which bear on all
conclusions of fact, and even in the absence of these advantages, there are other compelling policy reasons
supporting a deferential approach to inferences of fact. We conclude, therefore, by emphasizing that there is
one , and only one, standard of review applicable to all factual conclusions made by the trial judge – that of
palpable and overriding error.

The palpable and overriding standard addresses both the nature of the factual error and its impact on the result. A palpable error is one that is obvious, plain to see. Examples of palpable factual errors include findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference.

An overriding error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a palpable error does not automatically mean that the error goes to the root of the challenged finding of fact such that the fact cannot safely stand in the face of that error.*

William Poulos, Barrister

* This blog is not a substitute for legal advice. Should you require a legal advice, a lawyer should be consulted to advise on the specific circumstances of your case.

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