Canada: Defending Your Damage Award On Appeal

Last Updated: December 7 2011
Article by Kirk F. Stevens


This paper sets out some basic principles personal injury lawyers need to consider when they find themselves trying to uphold damage awards in an appellate court. Because the grounds upon which an appellate court may interfere with an assessment of damages are limited, this subject is narrow. Hence, this paper will be relatively brief. Much of it will be devoted to explaining just how limited appellate review is. Knowledge of those limits should assist you in identifying whether the arguments advanced by your opponent are permissible. Also, from time to time, appellate judges need gentle reminders of the fetters restraining their impulse to reach the "right" result as they might see it, if they had been the trial judge or on the jury. Sometimes, the reminders of these constraints delivered by the Supreme Court of Canada to the appellate courts of the provinces and territories are not so gentle: see Housen v. Nikolaisen1 and H.L.. v. Canada.2 Most of the time appellate judges are very mindful of the limits of appellate review and do not expect counsel to dwell on them at length. However, they do expect counsel to shape their arguments with those constraints in mind.

The Statutory Basis of Appellate Review

Appellate courts are creatures of statute.3 Although they review the decisions of superior courts, they do not possess the inherent jurisdiction enjoyed by a superior court of record. Consequently, in Ontario, one must look initially to the Courts of Justice Act4 to determine the ambit of the jurisdiction of both the Court of Appeal and the Divisional Court. This paper will not address the question of when an appeal lies to the Divisional Court, as opposed to the Court of Appeal; the answer to those jurisdictional questions can be readily found by reading ss. 6 and 19 of the Courts of Justice Act. The section of the statute which is most germane to this subject is s. 134, which defines the powers of both Court of Appeal and the Divisional Court when an appeal is properly before them. That section has several parts warranting discussion:

134.(1)Unless otherwise provided, a court to which an appeal is taken may,

  1. make any order or decision that ought to or could have been made by the court or tribunal appealed from;
  2. order a new trial;
  3. make any other order or decision that is considered just.

The above provision, which is broad, is circumscribed by s-s. 134 (4)(a):

(4) Unless otherwise provided, a court to which an appeal is taken may, in a proper case,

  1. draw inferences of fact from the evidence, except that no inference shall be drawn that is inconsistent with a finding that has not been set aside;

    .,to enable the court to determine the appeal,...

Section 134(4)(a) forces an appellate court-- and an appellant who seeks to persuade an appellate court to come to grips with the actual findings of a trial judge or jury, instead of emphasizing other facts in the record to come to a different conclusion. In other words, the provision suggests that appeals are to be reviews for error, not hearings de novo.5 As discussed below, considerable jurisprudence addresses the issue of when an appellate court may set aside a finding of fact made from an inference.

For the purposes of this subject, s-ss.134(6) and (7) of the Courts of Justice Act are also significant:

134(6) A court to which an appeal is taken shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred.

If a substantial wrong or miscarriage of justice affects only part of the judgment or only some of the parties, the appellate court may order a new trial in respect of only affected parties: a 134(7).

While s-ss. 134 (1) and (4) speak to what an appellate court may do with the conclusions of a judge or jury, ss-s.134 (6) and (7) speak to appellate scrutiny of the trial process. Not every error made in the conduct of a trial, such as misdirection or non-direction in the charge to the jury, the admission of inadmissible evidence, the exclusion of admissible evidence, or the striking or retention of a jury notice, necessarily justifies a new trial. To obtain a new trial, appellants must show more than the existence of error. Rather, they must also demonstrate a reasonably substantial possibility that the result would have been different if the error had not occurred.

In rare circumstances, an appellate court may also exercise its power under s. 134(1)(c) to decide a case even though a new trial would normally be ordered in similar circumstances. In Oneil v. Marks, Borins J. A. stated:

Generally speaking, as in this appeal, where there has been misdirection that satisfies the court that had the jury been properly directed it would not necessarily have reached the same verdict, a new trial is ordered. However, there is ample authority for the proposition that when an appellate court is satisfied that all the facts are before it, and they are such that only one verdict could be given by a properly instructed jury, acting reasonably and judicially, the court is not bound to order a new trial, but has the power, which it ought to exercise, to direct that judgment be entered notwithstanding the verdict of the jury.6

Section 134 of the Courts of Justice Act is not the only provision in that statute that speaks to the powers of an appellate court. Section 119, which was enacted in Bill 69 in 1989, provides that:

119. On an appeal from an award of damages for personal injury, the court may, if it considers it just, substitute its own assessment of the damages.

Previously, if an appellate court set aside a jury's assessment of damages, the case had to be sent back for re-assessment by another jury, unless the parties consented to substitution by the appellate court. Now, the court will generally make its own assessment if it considers that the record allows it to do so.

Jurisprudential Constraints on Appellate Review of a Trial Court's Conclusions

The scope of appellate intervention varies with the type of asserted error.

Errors of Law

If the appellant contends that the trial judge erred in law, the standard of review is "correctness." This standard is justified because the core function of appellate courts is to maintain legal consistency and ensure that the law develops in conformity with the demands of sound policy.7

Review for Factual Error

By contrast, the standard of review for factual findings is "palpable and overriding error," a phrase first used by the Supreme Court of Canada in 1976.8 Since the term is disjunctive, it is necessary to discuss the meaning of "palpable" separately from the meaning of "overriding."9

A finding of fact can only be set aside if it is "palpably" wrong. This means that the appellate court must be able to "plainly identify" the flaw in the finding to show that it is "clearly" wrong and "unreasonable". To employ a metaphor, one must be able to "put one's finger" on the error and be able to explain why it is error. In Waxman v. Waxman, the leading Ontario decision in the past decade on the standard of appellate review, Doherty J.A. explains: "After Housen, appellate courts will not review findings of fact... by asking whether on the totality of the record, those findings are reasonable.''10 In H.L. v. Canada, Fish J. stressed that an appellate court may not re-weigh evidence to arrive at a finding of fact that it believes is more reasonable than a fact reasonably found by a trial judge.11

The "palpability" standard applies to both findings of "primary fact" and findings of fact that are arrived at through inference. A finding of primary fact (or "evidential fact") is one whose existence is attested to directly by a witness or an exhibit. Fact-finding, however, almost always involves drawing inferences from evidence and other factual findings. Inferences require the application of both reasoning and common experience. A classic example of a factual inference is a finding of causation- e.g., "but-for" the defendant's sexual abuse of the plaintiff, he probably would not have developed alcoholism (which was a finding at issue in H.L.).

There are two broad reasons for rejecting any distinction between primary fact and inferences for the purposes of appellate review. Housen v. Nikolaisen, H. L. v. Canada and Waxman v. Waxman go to great lengths to repudiate the argument that, where credibility is not in issue, an appellate court is in as good a position to draw inferences as the trier of fact.

The first reason for rejecting the distinction is that appellate courts are simply not in as good a position as trial courts to draw inferences. Trial judges and juries are more familiar with all of the evidence than an appellate court can possibly be, because an appeal necessarily focuses on a limited number of issues and a limited amount of evidence. Also, the basis of a valid inference may not be fully articulated in the reasons for judgment, and is invariably only sketched in the barest manner in the answers of a jury. In this respect, it should be noted that a trial judge is not required to address every piece of evidence adduced at trial. In most cases, this would be impossible. While many statements in the cases justifying a highly deferential standard of review focus on the advantage trial courts enjoy in assessing credibility, this advantage, while real, is not the basis for deference. A finding of credibility can be set aside if it is palpably wrong e.g., where the trial court overlooks self-contradictory testimony or other incontrovertible evidence that renders a witness' evidence manifestly wrong (or right) despite the impression the witness made in the box. Findings of credibility may also be set aside where they are based on arbitrary or irrelevant considerations.12 Nevertheless, a finding of credibility is especially difficult to reverse because, in essence, it is a special type of inference. As Doherty J.A. stated in Waxman v. Waxman:

Credibility assessments are also grounded in numerous, often unstated considerations which only the trial judge can appreciate and calibrate.13

The considerations that go into an inference as to whether a witness should be believed or include sensory "data" picked up by the trier of fact from the demeanor of witnesses. However, the credibility of any witness also depends on the internal consistency and reasonableness of the witness' evidence, its relationship to other evidence and its congruency with the perceptions of the tries of fact as to how the world works. Credibility findings are probably the most complex inferences of all.

Second, there are policy reasons for limiting appellate review of factual findings and for rejecting any distinction between findings of primary fact and inferences. If an appellate court is required to review the totality of the record to determine whether the factual inferences made by a trial judge are reasonable (the position of Bastarache J. in Housen in dissent), appeals would be interminable. Efficiency requires the imposition of an obligation on appellants to narrow the focus to specific facts, demonstrate that they are palpably wrong, and establish their central importance -i.e., to show "palpable and overriding error", as the majority in Housen held. Limiting appellate review is also justified by the need to protect the legitimacy of trial courts through a "presumption of fitness" and the need to discourage the number of appeals.14

The "palpable error" test also extends to the acceptance or rejection of expert evidence: see Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital15. This high degree of deference does not mean that a trial judge's decision to prefer the opinion of one expert to that of another is immune from challenge. Accepting the opinion of an expert where the opinion lacks reasonable foundation in the evidence, or is inconsistent with a finding of primary fact, would be unreasonable.

As already noted, to vitiate a judgment, an error must be "overriding" as well as "palpable". In other words, the tainted finding must be central to the trial result, in the sense that, if it cannot stand, the judgment must fall with it.16 If an error is overriding, setting it aside may or may not result in the appellate court reaching a conclusion opposite to the factual conclusion reached at trial. This is because the appellate court may not be able to reach its own finding on the evidence. The proper determination of a fact may hinge on credibility, which, in many cases, can only be assessed by actually seeing the witnesses.17 In other cases, a new trial might be required because the determination turns on the totality of the evidence -i.e., even though the appellate court can "put its finger on" an error in the process by which the factual finding was made, it nevertheless might be reasonably possible for another trial judge to reach the same conclusion on the same evidence.18

An exhaustive definition of the kind of errors that qualify as palpable and overriding errors is not possible, but, with respect, list set out by Doherty J. A. in Peart v. Peel Regional Police Services Board is a very useful starting point:

  • the failure to consider relevant evidence;
  • the misapprehension of relevant evidence;
  • the consideration of irrelevant evidence;
  • a finding that had no basis in the evidence; and
  • a finding based on an inference that is outside of even the generous ambit within which there may be reasonable disagreement as to the inference to be drawn; that is, an inference that is speculation rather than legitimate inference.19

Whether a finding is "speculation" is often a matter of controversy. An inference can legitimately be based on a combination of evidence and the trier of fact's common sense and/or common experience. However, the boundary between common sense and speculation can be blurry.20 Speculation can also occur when a trier of fact, after rejecting a witness' version of events, leaps to the conclusion that the opposite of what the witness testified to must be correct, without any positive evidence to support the inference.21

"Ignoring evidence" requires a special caution. The mere omission of mention of a piece of evidence in reasons for judgment does not necessarily imply that the trial judge failed to take it into account:

omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial... [A]n omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate court cannot reconsider the evidence22

Silence on some evidence in reasons for judgment may simply mean that the trial judge, correctly, did not think it was sufficiently weighty to mention. On the other hand, some evidence is so critical that failure to explain its rejection does amount to palpable and overriding error. This is because reasons for judgment must achieve a level of completeness and coherence to afford the losing party an intelligible reason for why s/he lost and provide an appellate court an opportunity to assess the reasonableness of the conclusions.23 For example, the failure to mention evidence on a central issue from a witness whose credibility was unchallenged has been held to constitute palpable and overriding error.24

Review of Findings of Mixed Law and Fact

The "palpable and overriding error" test also applies to findings of "mixed law and fact." A finding of mixed law and fact is simply the application of a legal standard to a fact or set of facts. The classic example of a finding of mixed law and fact is a determination of whether a defendant is negligent. As discussed below, the determination of an award of damages is similar to a finding of mixed law and fact because it is essentially a "judgment call", reversible only if demonstrably unreasonable. Although the standard of review for findings of mixed law and fact requires the appellant to identify unreasonableness, an appellant can also succeed by showing that the error was really a misapprehension of the legal standard. In that event, the error is more properly characterized as an error of law, reviewable on the correctness standard.25

Review of Jury Verdicts and Assessments

Is the standard of review any different for jury trials? In theory, the standard should be be the same. In a jury trial, the law applied by the court is set out in the charge to the jury and is reviewable on the correctness standard, subject to the proviso, discussed in more detail below, that, to be reversible, the error must have resulted in a substantial wrong or miscarriage of justice. As for findings of fact and findings of mixed law and fact made by a jury, Cory and lacobucci, JJ., writing for the majority in the Supreme Court of Canada in Housen v. Nikolaisen, said

requiring a standard of "palpable and overriding error" for findings of negligence made by either a trial judge or a jury reinforces the proper relationship between the appellate and trial court levels and accords with the established standard of review applicable to a finding of negligence by a jury.26 [Emphasis added.]

In Young v. Bella, a Supreme Court of Canada decision restoring a jury's assessment of damages, the court cited both Housen and H. L. v. Canada as determining the standard of review, even those two decisions reviewed judgments from bench trials.

In practice, as opposed to theory, however, appellate courts give even more deference to juries than to trial judges. In Young v. Bella, McLachlin C.J.C. and Binnie J. Stated:

Jury awards of damages may only be set aside for palpable and overriding error. It is a long-held principle that "when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone"27

Interference with a jury verdict, assessment of the quantum of damages, or apportionment of damages according to fault is justified only in "exceptional" circumstances.28 Likely, the most frequently quoted formulation of the test was set out by the Supreme Court of Canada in 1937 in McCannell v. McLean:

The principle has been laid down in many judgments of this Court to this effect, that the verdict of a jury will not be set aside as against the weight of evidence unless it is so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it.29

The very nature of jury verdicts and assessments of damages throws up a significant hurdle into the path of an appellant. Jury answers are sparse; they identify the wrong committed by the defendant in few words and assessments of damages are set out in bald amounts. The findings of fact supporting verdicts and assessments must be inferred from the answers and the evidence. Thus, in approaching a jury's assessment of damages, deference requires an appellate court to presume that the jury made every finding in the respondent's favour that was reasonably open to it on the evidence.30

Application of the Standard of Review to Assessments of Damages

Formulations of the standard of appellate review specifically pertaining to damages are essentially corollaries of the general principles discussed above. The most frequently quoted statement is that the appellant must establish that the award "is so inordinately high (or low) that it must be a wholly erroneous estimate of the damages."31 In Vieczorek v. Piersma, Cory J.A. said that an award of non-pecuniary damages made by a jury should only be set aside if it is "beyond the scope of anything that could be accepted as reasonable.''32

Past Pecuniary Loss

Awards for past pecuniary loss (income and cost of care) require proof on a balance of probabilities. Review of such awards on the palpable and overriding error standard is no different than the review of other findings of fact. At first instance, the task is to determine past events on the balance of probabilities and make quantification judgments about them. On appellate review, the task is to determine whether the appellant can establish that the conclusion was unreasonable.

Review of awards of non-pecuniary damages and awards for future pecuniary loss require further elaboration.

Non- Pecuniary General Damages

An award of non-pecuniary general damages results from a two-step exercise. First, the trier of fact determines what injuries and impairments the plaintiff has suffered and the extent, if any, to which they are likely to persist into the future. Reviewing those conclusions on appeal is a matter of applying the palpable and overriding error test.33

The second step is assigning an amount to the non-pecuniary loss. This step can be done by a trial judge or by a jury, with or without the guidance of the trial judge or counsel for the parties.34 If guidance is given in the charge to the jury, the trial judge's instruction should be informed by reference to similar cases, bearing in mind that comparisons between cases are necessarily rough and can only result in establishing a range of reasonable values for the loss. When reviewing a jury assessment, the Court of Appeal often applies a rule of thumb enunciated in Howes v. Crosby:

Normally this Court, depending on the amount of damages, takes the view that if it is of the opinion that the award is too high or too low by 50%, it concludes that the damages are inordinately high or low and varies it accordingly....35

Howes v. Crosby also holds that, while awards of non-pecuniary general damages should aim for consistency, they are not to be measured against the cap in the "trilogy." As the Court of Appeal recently stated in Sandhu v. Wellington Place Apartments

The upper limit for non-pecuniary damages in catastrophic injury cases is not to be used as a scale against which non-pecuniary claims for all other injuries are to be measured: see Howes v. Crosby [citation omitted] In other words, it is inappropriate to evaluate Harvinder's injuries solely on the basis of some notional comparison with an imagined worst case scenario. While awards for non-pecuniary damages in similar cases should achieve a degree of consistency and uniformity, this kind of comparative analysis offers only limited assistance. The assessment of non-pecuniary damages ultimately depends on the mix of factors peculiar to each particular plaintiff...36

Future Pecuniary Loss

At first instance, the standard of proof for this type of loss is "real and substantial risk" and recovery is discounted by the percentage of possibility that the loss may not occur and/or by the chances that it might have occurred even if the tort had not been committed.37 Doctrinally, the test for reviewing assessments of future loss on appeal is the same as for past loss. In the context of reviewing (and varying) such an assessment in Graham v. Rourke, Doherty J.A. stated:

An appellate court must give due deference to the trial judge in reviewing a damage assessment. It can interfere with that assessment only where the trial judge misapplied applicable principles of law, or made a palpable and overriding error which affected factual findings, or awarded an amount which is a wholly erroneous estimate of the damage suffered [Citations omitted].38

Practically, speaking, however, review of awards for future loss on factual grounds will be even more difficult because the exercise at first instance is inherently somewhat speculative. Nevertheless, as Graham v. Rourke demonstrates, the test can be met. There, the trial judge found that there was no evidence to support a contingency deduction from the awards for future loss of income and future care. On appeal, the defendant was able to point to considerable evidence to show that there was a substantial possibility that the plaintiff's pre-accident back condition would have recurred even if the motor vehicle accident at issue had not happened.

Are future pecuniary damage awards subject to review on the basis that, even though evidence exists to support them, the assessment is simply too high, unprecedented, and unfair to the defendant? This issue was raised recently in Marcoccia v. Gill, supra, an appeal of a jury assessment of damages for future care ($14 million) in a brain injury case. The award was premised on the proposition that the plaintiff, who was mobile but had severe cognitive, psychological, and emotional problems, would require constant care and supervision. The Court of Appeal gave short shrift to the defendant's argument that the award was "way out of the park", noting that the appellant had conceded that an assessment of $11 million would have been reasonable. The court held that it had no basis to interfere where the award rested on expert evidence properly adduced at trial.39 Implicitly, the court rejected the proposition that the assessment of pecuniary damages is "subject to a tariff or comparison between plaintiffs", a proposition that was also recently rejected by the British Columbia Court of Appeal in Aberdeen v. Zanatta.40 The "simply too high" issue also lurked beneath the surface in Sandhu v. Wellington Place Apartments, also a brain injury case. There, the defendant's central complaint on appeal was that the jury assessed future care at an amount higher than the highest amount mentioned by plaintiffs' counsel in her closing jury address. The Court of Appeal dismissed the appeal, noting that the assessment was grounded in the evidence. Despite the argument's lack of success thus far, we can expect that unsuccessful defendants will continue to advance it in one form or another. Respondents' counsel should never forget that the trade-off for the cap on non-pecuniary general damages in the trilogy was affirmation that pecuniary loss, particularly the cost of future cane, should be fully compensated.41

Review for Process Errors and Trial Unfairness

This paper of this nature cannot encompass in any detail the subject of appellate review on the basis of trial unfairness. Nevertheless, lawyers for respondents should keep several considerations top of mind. First, most evidentiary rulings and rulings as to trial process are discretionary and, as such, are entitled to deference unless they are based on a wrong principle or are arbitrary and/or capricious and/or based on a palpable misapprehension of the factual circumstances.42 Thus, even if the impugned decision can be criticized, it may still be afforded deference. Second, as noted above, such a decision might be wrong, but it may not have caused a substantial wrong or miscarriage of justice, for example, in Sandhu v. Wellington Place Apartments, the Court of Appeal held that, although the trial judge erred in refusing to qualify the defendant's only expert on liability, his qualifications were so weak and his proposed evidence was so inconsistent with the evidence (including admissions by the defendant's employees) that, even if he had been heard, his evidence could not have affected the jury's verdict.43 Third, appellants may complain about matters on appeal that were not objected to at trial because of strategic considerations. The classic example of this is failure to object to the charge to the jury, but there are others, such as the failure to object to the admission of evidence. While failure to object at trial is not necessarily fatal to a ground of appeal, as where the jury was erroneously instructed on a pivotal legal principle or the conduct of successful trial counsel was egregious, silence at trial is a significant hurdle to an appellant that the respondent should emphasize, if relevant.44

Conclusion: A Practical Note for Respondent's Counsel

To have any hope of success, an appellant must narrow the focus of the case to one or a few findings of fact, or occurrences during the course of the trial. The job of appellant's counsel is to show that, within that focus, the trial court made errors of law or unreasonable findings of fact that were pivotal to the entire case, or that the trial was tainted by substantial unfairness. Since no case is perfect (the most perfect cases tend to settle before trial), appellants will usually be able to find something to create an initial doubt in the minds of appellate judges about the soundness of the judgment.

In some appeals, the appellant can only do this by misstating or mischaracterizing facts or advancing a patently incorrect formulation of the law. Such cases are easy for respondents' counsel. The other type of easy case is where the appellant ignores the standard of review and attempts to convince the court to re-try the case.

The tougher cases are the ones where an error has occurred. Bearing in mind that factums and oral argument are subject to length limits (oral argument for the respondent is usually less than for the appellant), respondent's counsel must decide how much effort to devote to defending a particular aspect of the reasons for judgment, or a ruling made during the course of trial, as opposed to how much should be devoted minimizing its significance. Sometimes, the indefensible must be recognized as such. Indeed, sometimes, the respondent is well advised to acknowledge that a part of the award cannot stand and aim to preserve what can be defended.

Putting a case on appeal into the best possible requires counsel to select the most important facts, package them concisely, yet vividly, and link them efficiently to both the overall factual context and the applicable legal principles. It also requires trial counsel to distance themselves from the case if they decide to do the appeal themselves some of the hard fought skirmishes won along the route to victory at trial may not be significant on appeal. Indeed, sometimes counsel can rue some of those victories as they may potentially lead to reversal on appeal.

Finally, counsel should recognize that, while appellate judges are usually sympathetic to the plight of injured plaintiffs, their duty requires them to do justice to both plaintiffs and defendants. Thus, while your case on appeal should be argued passionately, appeals to sympathy may highlight weaknesses in your case. Getting the facts right, putting them in to the right context, advancing the right law, and getting quickly to the point are the ingredients of success.


1 Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.

2 H.L.v. Canada (Attorney General), [2005] S.C.R. 401, 2005 SCC 25.

3 Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, LaForest J. at 69-70;

4 R.S.O. 1990, c.C-43

5 See: H.L.v. Canada, supra, which considers The Court of Appeal Act, 2000, S.S. 2000, c. C-42.1, s. 14. In that case, the defendant argued successfully in the Saskatchewan Court of Appeal and unsuccessfully in the Supreme Court of Canada that the Saskatchewan statute afforded scope for a hearing de novo and conferred broader powers on the Saskatchewan Court of Appeal than are conferred on other provincial courts of appeal, including Ontario; Hodgkinson v. Sims, [1994] 3 S.C.R. 377, in which LaForest J. stated at p.426, that an appellate court "simply has no jurisdiction to interfere with the findings and conclusions of fact of a trial judge..."; and, Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.) at ¶¶289-91.

6 0neilv. Marks(2001), 141 O.A.C. 201 (C.A.)at¶92

7 Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at ¶¶8-9.

8 Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802, Ritchie J., at 808. A CanLII search on April 30, 2009 yielded a list of 102 Supreme Court of Canada cases containing the phrase, "palpable and overriding error."

9 Waxman v. Waxman (2004), 186 O.A.C. 201 (C.A.)at ¶297.

10 Waxman v. Waxman, supra, at ¶305.

11 H.L. v. Canada (Attorney General), supra, at ¶¶ 52-7.

12 Waxman v. Waxman, supra, at ¶364.

13 Waxman v. Waxman, supra, at ¶359

14 Housen v. Nikolaisen, supra, at ¶ 11-13.¶

15 Toneguzzo-Norvell (Guardian ad litem of) v. Bumaby Hospital, [1994] 1 S.C.R. 114.

16 Waxman v. Waxman

17 But see, e.g., Oneil v. Marks, supra.

18 Armstrong v. Centenary Heath Centre (2005), 198 O.A.C. 349 (C.A.) at ¶ 86.

19 Peart v. Peel Regional Police Services Board (2006), 217 O.A.C. 269 (C.A.) at ¶ 158

20 Compare the majority and dissent in Aristorenas v. Comcare Health Services (2006), 83 O.R. (3d) 282 IF.A.).

21 Waxman v. Waxman, supra, at I]351.

22 Housen v. Nikolaisen, supra, at 1139; Van de Perre v. Edwards, [2001] 2 S.C.R. 1014, 2001 SCC 60 at ¶1 5.

23 R. v. Sheppard, [2002] 1 S.C.R. 869, Waxman v. Waxman, supra.

24 Mandrake Management Consultants v. Toronto Transit Commission (1993),102 D.L.R. (4th) 12 (Ont. C.A.) at 37-40; Cyanamid of Canada Ltd. v. Bigelow Liptak of Canada Ltd. (1992), 99 D.L.R. (4th) 118 (Ont. C.A.) at 123.

25 Housen v. Nikolaisen, supra, at ¶¶26-37.

26 Housen v. Nikolaisen, supra, at ¶¶ 30.

27 Young v. Bella, [2006] 1 S.C.R. 108 at ¶30, quoting from Nance v. British Columbia Electric Railway Co., [1951] A.C. 601 (P.C.), at p. 614.

28 Marcoccia v. Gill, 2009 ONCA 13 at ¶ 29; Jones v. Niklaus (2008), 240 O.A..C. 43 (C.A.)at ¶ 43; Jack v. Kirkrude (2002), 155 O.A.C. (C.A.) at¶ 3; Snushall v. Fulsang (2005), 78 O.R.(3d) 142 (C.A.) at¶ 19;

29 McCannell v. McLean, [1937] S.C.R. 341, at p. 343

30 Cameron v. Excelsior Life Insurance Co., [1981] 1 S.C.R. 138, Laskin C.J.C.142;.Koukounakis v. Stainrod (1995), 23 O.R. (3d) 299 (C.A.), Doherty J.A. at 305-6;

31 Koukounakis v. Stainrod, supra, at p. 305, quoting Nance v. British Columbia Electric Railway Co.,[1951] 3 D.L.R. 705,713 (J.C.P.C.-B.C.); Woelk v. Halvorson, [1980] 2 S.C.R. 430, 435-6; Graham v. Rourke (1990), 74 DoL.R. (4th) 1 (Ont. C.A.).

32 Vieczorek v. Piersma (1987), 58 O.R.(2d)583 (C.A.), Cory J.A., 589.

33 Graham v. Rourke (1990), 75 O.R. (2d) 622 (C.A.).

34 Courts of Justice Act, supra, s. 118.

35 Howes v. Crosby (1984), 45 O.R. (2d) 449 (C.A.), MacKinnon A.C.J.O. at p. 459:

36 Sandhu v. Wellington Place Apartments 2008 ONCA 215, 291 D.L.R. (4th) 220, 234 O.A.C. 200 (C.A.) at ¶ 25.

37 Graham v. Rourke, supra; Andrews v. Grand & Toy AIberta Ltd. (1978), 83 D.L.R. (3d) 452 at pp. 467- 8, [1978] 2 S.C.R. 229; Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.),

38 Graham v. Rourke, supra, at pp. -;

39 Marcoccia v. Gill, supra, at ¶ 31.

40 Aberdeen v. Zanatta, 2008 BCCA 420 (CanLII) at ¶¶ 62-3.

41 Andrews v. Grand & Toy Alberta Ltd., supra, at pp.241-2.

42 Graham v Rourke, supra; Hamstra v. British Columbia Rugby Union, [1997] S.C.R. 1092; MacDonald v. Chalmers Estate, 2008 ONCA 889 ate¶5-7.

43 Sandhu v. Wellington Place Apartments, supra, at ¶¶ 87-8.

44 Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Cronk J.A. at ¶ 66; Mizzi v. Hopkins (2003), 64 O.R. (3d) 365 (C.A.) Cronk J.A. at ¶¶ 53-9; Abdallah V. Snopek, 2008 CanLII 6983 (ON S.C.D.C.)..

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.