Does the standard of review change for findings of fact or factual inference under s. 59(2)?

The standard of review does not change whether reviewing findings of fact or factual inferences under s. 59(2). Although not in the administrative law context, the majority in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, noted that if the standard of review was different for findings of fact and factual inferences this may lead to an “unjustified reweighing of the evidence” by a reviewing court: at para. 22. The majority went on to note the unique position that trial judges are in with respect to making findings of fact and factual inferences, which, combined with “compelling policy reasons”, support a deferential approach in reviewing factual inferences.

Housen was applied in the administrative law context, prior to the ATA coming into force, in Bartman v. Twohey et al., 2004 BCSC 1211, [2004] B.C.J. No. 1896. Following an examination of the principles emanating from Housen, outlined above, Mr. Justice Holmes concluded there was no reason “to depart from the view that the courts will accord a human rights tribunal considerable deference with respect to its fact finding role…”: at para. 34.