Needless to say, the issue of the standard of review
applicable to orders of both judges and prothonotaries has been one
of the most contentious issues before our Court and before all
courts of appeal, including before the Supreme Court of Canada, in
the last 10 to 15 years.
In Housen, the Supreme Court set out the standard
applicable to decisions of trial judges. In relation to factual
conclusions the applicable standard is that of palpable and
overriding error. In relation to questions of law and questions of
mixed fact and law, where there was an extricable legal principle
at issue, the applicable standard is that of correctness.
The standard applicable to
discretionary orders of prothonotaries in the Federal Courts was
set out in Canada v. Aqua-Gem Investments Ltd.,
 2 F.C. 425 (and very slightly modified in Merck & Co. v. Apotex Inc., 2003 FCA
488): discretionary orders of prothonotaries ought not be
disturbed unless (a) the questions raised are vital to the final
issue of the case, or (b) the orders are clearly wrong as based
upon wrong principle or misapprehension of facts. The FCA held that
this standard is unnecessarily complex and no longer appropriate
given the expanding roles of prothonotaries.
The Court noted that, other than in
respect of the de novo review when the issue is vital,
both standards "simply formulate the same principles through
the use of different language." Yet "the effectiveness of
the process of appeals to a Federal Court judge from an order of a
prothonotary has been tainted by the language used in
Aqua-Gem." Appeals require the judge to ask whether
or not an order is vital to the final issue(s) of the case, which
has given "much difficulty to decision makers."
The Court adopted the reasoning
from Zeitoun v. Economical Insurance, 2009
ONCA 415, where a unanimous Ontario Court of Appeal held that
the prevailing standard of review applicable to appeals from
Ontario masters, which is identical to the Aqua-Gem
standard for all intents and purposes, should be abandoned and
replaced by the standard in Housen.
The ONCA held that the application
of a different standard to masters, which provided for de
novo hearings, was the result of historical notions of
hierarchy that were no longer applicable. Rather, reviewing courts
should proceed on the presumption of fitness that judges and
masters were capable of carrying out their mandates. There is no
principled basis for interfering with a decision on the sole basis
of the decision maker's place in the hierarchy. Courts had
already held that the Housen standard applied to
discretionary decisions of motions judges and there was no reason
that it should not also apply to discretionary decisions of
First, the Supreme Court applied
Aqua-Gem without comment on the standard itself. The true
issue in Pompey was the correctness of the decision under
Second, in Carter v. Canada (Attorney General), 2015
SCC 5, the Supreme Court held that lower courts need not follow
the decisions of higher courts in two situations: "(1) where a
new legal issue is raised; and (2) where there is a change in the
circumstances or evidence that "fundamentally shifts the
parameters of the debate."
The standard of review is certainly
not a new legal issue, but the FCA found that there had been a
sufficient change in circumstances due to "a significant
evolution and rationalization of standards of review in Canadian
jurisprudence." In particular, the role of prothonotaries has
continued to evolve since 1993. "Prothonotaries are no longer,
if they ever were, viewed by the legal community as inferior or
second class judicial officers. Other than in regard to the type of
matters assigned to them by Parliament, they are, for all intents
and purposes, performing the same task as Federal Court
Judges." Accordingly, the FCA held that the supervisory role
of judges over prothonotaries enunciated in Rule 51 no longer
requires that discretionary orders of prothonotaries be subject to
de novo hearings.
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