Appeals from the Opposition Board - The Standard of Review

This month we discuss the standard of review on these appeals. 

The Supreme Court of Canada has specified a new framework for determining the standard of review for administrative decisions, which includes decisions of the Board. The starting point is a presumption that a standard of reasonableness applies. However, the presumption is rebutted where legislature has statutorily prescribed a standard of review or where a statutory appeal applies to the decision.

As a statutory appeal is available the decisions of the Board are reviewed on an appellate basis. This means that the applicable standard is to be determined with reference to the nature of the question. Where, for example, a court is hearing an appeal it will, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness. Where the appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable). 

The “Palpable and Overriding error” test for factual matters is a highly deferential standard that authorizes intervention only where an error is both obvious and determinative of the outcome.

The question as to the materiality of new evidence on appeal to the Federal Court is a question of mixed fact and law. Such a finding will stand absent a palpable and overriding error or an extricable error of law. 

A further appeal is available to the Federal Court of Appeal as of right. On this appeal, whether the Federal Court applied the proper standard of review to the decision of the Board is reviewable by the Federal Court of Appeal on a correctness standard. 

The potential applicability of the “Palpable and Overriding error” test combined with the new requirement to obtain leave to file additional evidence on appeal ( discussed in our April comment) strongly suggest that the parties to an opposition put their best foot forward concerning the “facts”.

If you have questions, please contact me at mckeown@gsnh.com.

John McKeown

Goldman Sloan Nash & Haber LLP

480 University Avenue, Suite 1600

Toronto, Ontario M5G 1V2

Direct Line: (416) 597-3371Fax: (416) 597-3370

Email: mckeown@gsnh.com

These comments are general in nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.