With respect, this ground of appeal engages different standards of review. The legal test to find implied waiver is an extricable question of law and is reviewable on a correctness standard. If the application judge articulated the correct legal test, his application of the test to the evidence is also a question of law and is also to be reviewed on a correctness standard. If he identified and applied the test properly, his findings on whether there was an implied waiver are to be reviewed on a palpable and overriding error standard (See McPherson v. Campbell, 2019 NSCA 23, ¶18 and cases cited therein). Analysis
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