Since its 1995 decision in David Bull Laboratories (Canada)
Inc. v. Pharmacia Inc.1,
the Federal Court of Appeal consistently applied a unique standard
of review to interlocutory, discretionary orders of the Federal
Court. Under this longstanding test, the FCA gave deference
to a discretionary decision of the Federal Court unless it
proceeded "on a wrong principle, gave insufficient weight to
relevant factors, misapprehended the facts, or where an obvious
injustice would result". This was despite the Supreme
Court of Canada's 2002 decision in Housen v
Nikolaisen2 which the FCA applied to the standard
of review on all other appeals.
No more. In its recent decision of Imperial
Manufacturing Group Inc v Décor Grates Inc.3
2015 FCA 100, the Federal Court of Appeal clarified that the
Housen standard of "palpable and overriding
error", unless there is an extricable error of law, applies to
all questions of mixed fact and law, even discretionary
David Bull was a case in which the Federal Court
refused to strike out a notice of motion. On appeal, the FCA stated
the following about the standard of review: "This court
should not of course interfere with a trial judge's exercise of
discretion, such as in a refusal to strike, unless he or she has
proceeded on some wrong principle of law or has seriously
misapprehended the facts, or unless an obvious injustice would
The Supreme Court of Canada's
majority decision in Housen, which came seven years after
David Bull, held that on questions of fact, or mixed fact
and law not traceable to a legal error, an appellate court may not
intervene absent palpable and overriding error. The Court
succinctly summarized the point as follows:
A proposition that should be unnecessary to state is that a
court of appeal should not interfere with a trial judge's
reasons unless there is a palpable and overriding error. The same
proposition is sometimes stated as prohibiting an appellate court
from reviewing a trial judge's decision if there was some
evidence upon which he or she could have relied to reach that
Imperial Manufacturing related to an appeal from a
Federal Court decision6 dismissing a motion for
particulars in an industrial design infringement action. In
dismissing the appeal, Justice Stratas noted six problems with
applying the David Bull standard of review to
interlocutory and discretionary orders:
Following David Bull over Housen creates a
problem of stare decisis because the Supreme Court of
Canada's Housen decision "provided the definitive
word on the standard of review" and is "binding on
Applying a different standard of review to discretionary
interlocutory decisions causes confusion because it is sometimes
unclear whether a decision is final or
The David Bull line is redundant in face of
Housen. Where a court commits "an error on an
extricable point of law" (from Housen) it "has
proceeded on a wrong principle" (from David
Bull). Likewise, severe instances of "giving of
insufficient weight to relevant factors, misapprehending the facts
or causing an obvious injustice" (the David Bull
standard) are "palpable and overriding errors" (in
David Bull "poses a trap for the unwary" by
suggesting that the Federal Court of Appeal will reweigh the
evidence if "insufficient weight was given to relevant
factors" by the Federal Court. Justice Stratas viewed
this is a trap, because in his view "plainly this is not what
we [(Federal Court of Appeal judges)] ever
All other Canadian appellate courts apply the Housen
standard of review "across the board". There is no
rationale to support the Federal Court of Appeal's use of a
different standard,11 and
David Bull simply asserts, without authority, that
"giving insufficient weight to relevant factors" warrants
Imperial Manufacturing is an important decision as it
clarifies the law surrounding the appropriate standard of review.
Housen dictates and is binding on all. For questions
of fact the standard is one of palpable and overriding error. The
standard is the same for questions of mixed fact and law, where the
alleged error is not traceable to an error in law.
1  1 FC 588, 58 CPR (3d) 209 (CA) (citations to CPR)
2 2002 SCC 33,  2 SCR 235
3 2015 FCA 100 [Imperial Manufacturing].
4 David Bull, supra note 2 at 213 citing
Nabisco Brands Ltd v Procter & Gamble (1985), 5 CPR
(3d) 417 at 418 (FCA).
5 Housen, supra note 1 at para 1,
Iacobucci and Major JJ.
6 2013 FC 1189.
7 Imperial Manufacturing, supra note 3 at
8 Ibid at para 24.
9 Ibid at para 25.
10 Ibid at para 26.
11 Ibid at para 27.
12 Ibid at para 28.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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