What is a palpable error in the standard of review applicable to questions of mixed fact and law?

With respect to the standard of review applicable to questions of fact or mixed fact and law, a palpable error is one that is obvious, plain to see, or clear. Examples of such an error include: findings made in the complete absence of evidence; findings made in conflict with accepted evidence; findings based on a misapprehension of the evidence; and findings of fact drawn from primary evidence that are the result of speculation rather than inference: see Housen, at paras. 6 and 23; Waxman v. Waxman, 2004 CanLII 39040 at para. 296, 186 O.A.C. 201.

An error is overriding when it carries with it sufficient significance so as to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a palpable error does not automatically render the error an “overriding” one. To be “overriding,” the error must go to the root of the challenged finding of fact, such that the fact cannot safely stand in the face of that error: see Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254, at paras. 34–35.