Small Claims Court Appeals

Chart of Review Courts

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Standard of Review

Ashrafi v. Carraro, 2019 ONSC 6326 (CanLII)

[18] At pages 1112 to 1116 of Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario, 3d ed (Toronto: LexisNexis Canada 2017) the learned authors set out principles governing standards of review in appellate matters.

[19] The appellate standard of review where the ground of appeal is that the trial judge erred in law is correctness. In contrast the standard of review for findings of fact is that the error must be a “palpable and overriding error”, meaning plain to see and affecting the result.

[20] Errors of mixed fact and law, where the question of legal principle is not readily extricable, are subject to the test of palpable and overriding error.

[21] The learned authors additionally note at para. 12.225 of The Law of Civil Procedure in Ontario, 3d ed, supra:

Other than standard form contracts, the exercise of applying the principles of contractual interpretation is a question of mixed fact and law because contracts are to be interpreted in a …[factual] matrix; however, the standard of appellate review for standard form contracts is the correctness standard for issues of law.

Kean v. Popert, 2019 ONSC 6410 (CanLII)

[17] An appeal from a final order of the Small Claims Court lies to a single judge of the Divisional Court where the amount is in excess of $2,500. The amount in this matter is $25,000, and therefore I have jurisdiction to hear this appeal: see ss. 19(1)(a), 19(1.2)(a) and 31 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[18] On an appeal, the appellate court has the following powers, as set out in s. 134(1) of the Courts of Justice Act:

Unless otherwise provided, a court to which an appeal is taken may,

(a) make any order or decision that ought to or could have been made by the court or tribunal appealed from;

(b) order a new trial;

(c) make any other order or decision that is considered just.

[19] In order to resolve this issue, I must first determine the nature of the purported error and then, the applicable standard of review.

[20] If the purported error is a question of fact, then the standard of review is palpable and overriding error. If the purported error is a question of law, then the standard of review is correctness. If the purported error is a question of mixed fact and law, then the standard of review falls on a spectrum between correctness and a palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235.