What is the legal test for overturning a finding that a trial judge erred in law in his or her determination of negligence?
Ontario, Canada
The following excerpt is from Dolyn Developments Inc. v. Paradigm Properties Inc., 2007 CanLII 251 (ON SC):
An appellate court must take a more cautious approach where, for example, it is said that a trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. Where the legal principle is thus not readily extricable, the matter of mixed law and fact under review is subject to the more stringent standard, and shall not be overturned absent palpable and overriding error. The general rule is that if the issue under appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error. Housen v. Nicolaisen, ibid.
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