Can an appellate court substitute its own opinion over that of the trial judge?
Ontario, Canada
The following excerpt is from Farmer v. Farmer, 2021 ONSC 5913 (CanLII):
On a pure question of law, an appellate court is free to substitute its own opinion over that of the trial judge (or in this case the arbitrator). The standard of review is correctness. See Housen v. Nikolaisen, 2002 SCC 33 ¶ 8.
The standard of review for findings of fact is that they are not to be reversed unless the arbitrator made a “palpable and overriding error”. That means an error that is “clear to the mind or plain to see”, and one which affected or “discret[ed]” the result. See Housen v. Nikolaisen ¶ 6, 10, 16-18. See also L. (H.) v. Canada (Attorney General), 2005 SCC 25 ¶ 56, 69.
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