The Continuing Legal Education Society of British Columbia March 27-28, 2014 Civil Litigation Conference 2014 QUESTIONING YOUR STANDARDS WRITTEN BY: TRACEY M. COHEN AND DANIEL BYMA, ARTICLED STUDENT MARCH 2014 Introduction The standard of review is the starting point for consideration of whether to appeal a lower court decision. The standard of review is one of the defining aspects which distinguishes trial advocacy from appellate advocacy. It determines the context within which an appellate court will review a lower court decision and potentially plays a large role in the final outcome of an appeal. Understanding the importance of the standard of review is often crucial to mounting a successful appeal. More specifically, understanding some of the intricacies and trends within the Courts’ application of standard of review assists a lawyer to properly frame his or her argument and increase the prospect of the appellate court reaching the desired outcome. This paper will briefly outline some basic principles of standard of review before taking a closer look at two issues related to the standard of review in greater detail. It must be emphasized at the outset that the following is a high level summary of the basic standard of review principles. It is not intended to be exhaustive. Rather than examine each aspect of the subject in detail, it is intended to give a sufficient overview to explore the two aforementioned issues of interest. Revisiting the Basics An appellate court’s role is not to retry a case, but to determine whether there was a reviewable error made by the court below.1 The nature of an alleged error will determine whether and how an appellate court is permitted to interfere with the lower court’s decision. The “how” is the standard of review and the starting point of any appeal. 1 Housen v. Nikolaisen, 2002 SCC 33 at paras 3-4. - 2 - Generally, there are four main types of errors which allow an appellate court to interfere with the decision of a lower court: (1) error of law; (2) error of fact; (3) error of mixed fact and law; and (4) error of exercising discretion.2 The courts are required to apply a different standard of review to each of these errors. Questions of law are questions that deal with the scope, effect, and application of a legal rule or test to be applied in determining the rights of the parties.3 These questions will be reviewed by the Court of Appeal using the standard of review of “correctness”.4 That is to say, a lower court’s order must be correct in law. Where a legal error can be demonstrated by an appellant, the Court of Appeal is “free to replace the opinion of the trial judge with its own”.5 In contrast, questions of fact deal with what actually took place between the parties.6 These questions will attract the standard of review of “palpable and overriding error”. This accords a high standard of deference towards findings of the trial judge. An appellate court may only intervene on a question of fact where the error is obvious and had an effect on the outcome of the case. As Fish J. stated, the “palpable and overriding error” standard requires that “one must be able to ‘put one’s finger on’ the crucial flaw, fallacy or mistake.”7 Questions of mixed fact and law involve the application of a set of facts to a legal standard or principle.8 By way of example, determining whether a defendant breached the standard of care in a negligence claim is a question of mixed fact and law.9 It requires a trial judge to determine the appropriate standard, which is a question of law, and apply the particular facts of the case to that legal standard. The appropriate standard of review for questions of mixed fact and law falls somewhere on a sliding scale between correctness on one end and palpable and overriding error on the other. Where upon the scale the standard of review falls depends upon whether the question is more legal or factual in nature and depends upon the particular circumstances. Where the question of law is extricable from the factual issues, an error on a question of mixed fact and law can amount to a pure question of law subject to the correctness standard.10 Iacobucci J. provides the example in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, where a legal test requires the consideration of four different factors and a trial judge fails to consider one of the factors. By not considering the fourth factor, the trial judge has in effect applied the wrong 2 Housen; see also Holly Brinton, Civil Appeal Handbook (Vancouver, CLEBC) (loose-leaf updated November 26, 2013) at 2.3. Note: the courts will also deal with issues of natural justice and jurisdiction on appeal. Such errors are beyond the scope of this paper. 3 Canadian National Railway Co. v Bell Telephone Co., [1939] SCR 308; see also Canada v Southam, [1997] 1 SCR 748 at para 35; and British Columbia v. Burlington Resources Canada Ltd., 2005 BCCA 72 4 Bell v Bell, 2001 BCCA 148 at para 11. 5 Housen v. Nikolaisen, 2002 SCC 33 at para 8. 6 Canada v Southam, [1997] 1 SCR 748 at para 35. 7 H.L. v. Canada (Attorney General), 2005 SCC 25 at para 70. 8 Housen at para 26 9 D.M. Drugs (Harris Guardian Drugs) v. Barry Edward Bywater (Parkview Hotel), 2013 ONCA 356 at para 53. 10 Housen at para 27 quoting Canada (Director of Investigation and Research v. Southam, [1997] 1 S.C.R. 748. - 3 - legal test and the result is an error of law. This error would of course attract the correctness standard of review.11 Where a question of mixed fact and law does not amount to an error of law, a higher standard of deference is mandated.12 The BC Court of Appeal has stated that unless there is such a clearly identifiable or extricable error of law, then a lower court’s order should be reviewed with deference.13 Finally, questions involving the exercise of discretion are described in R.P. Kerans’ book, Standards of Review Employed by Appellate Courts, (Edmonton: Juriliber Limited, 1994) at 124-126: One can lump the “discretion” cases roughly into two sub-groups: the first are those cases involving the management of the trial and the pre-trial process; the second are those where the rule of law governing the case makes many factors relevant, and requires the decision-maker to weigh and balance them. Questions that appear discretionary can actually be questions of law. In British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, LeBel J. states that “the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as a failure to apply them or a misapplication of them raise questions of law which are subject to appellate review.” Where an appeal addresses an order which is clearly discretionary, a highly deferential standard of review is mandated. As Gonthier J. stated, “Courts of Appeal should be highly reluctant to interfere with the exercise of a trial judge's discretion.”14 Generally, appellate courts will only interfere with a lower court’s decision where the trial judge has incorrectly applied a legal principle or the decision is so clearly wrong that it amounts to an injustice.15 While these basic principles are not overly complex, determining the applicable standard of review can present pitfalls to lawyers who do not take the time to explore subtle issues with the application of various standards or to stay apprised of appellate trends. The balance of this paper will move from the high level concepts to a closer look at two such issues. First, it will explore a distinction in the standard of review between two statutory provisions which appear to demand a similar standard. Second, it will explore the evolution of the standard of review for summary trials. 11 See also Shiokawa v Pacific Coast Savings Credit Union, 2005 BCCA 95 at para 46. 12 Housen at para 28. 13 Keefer Laundry Ltd v Pellerin Milnor Corp, 2009 BCCA 273 at para 60. 14 Elsom v. Elsom, [1989] 1 SCR 1367. 15 Elsom at 1375; see also Kedia International Inc. v. Royal Bank, 2007 BCCA 47 at para. 22. - 4 - Standard to Strike vs. Standard to Certify The difference in the standard of review between an order to strike pleadings under Rule 9-5(1) of the Supreme Court Civil Rules16 (the “BC Rules”) and an order to certify a class action under section 4(1)(a) of the Class Proceedings Act17 (the “CPA”) should serve as a red flag to any lawyer looking to gloss over their standard of review analysis when preparing an appeal. Each of these statutory provisions requires the trial judge to determine whether a cause of action is disclosed in the pleadings. One would expect that these two provisions would attract the same standard of review on appeal, but the case law thus far bears out a different story. Section 4(1) of the CPA, lays out five requirements for class certification, including that the pleadings disclose a cause of action under clause (a): 4 (1) The court must certify a proceeding as a class proceeding on an application under section 2 or 3 if all of the following requirements are met: (a) the pleadings disclose a cause of action; … The question of whether pleadings disclose a cause of action has been held by the courts to be a question of law attracting the correctness standard of review.