The Standard of Review By Appeal Courts of Lower Court’s Decisions

The BCCA in Re Korol 2014 BCCA 380 recently examined the standard of review of an appellate court of a lower court’s decision in light of the following  SCC case of Penner v Niagara Regional


An Appeal Court’s standard of review of discretionary decisions was recently restated by the Supreme Court of Canada in Penner v. Niagara Regional Police Services Board, 2013 SCC 19 (S.C.C.):

[27] A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice: Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375.


Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 76-77.


However, a discretion exists in superior courts to grant relief from the effect of issue estoppel. ( the finding of facts made by a lower court)

Obviously such discretion should be exercised where the first proceedings were actually unfair, but relief may be granted from issue estoppel in fair proceedings where a clear legislative distinction exists between the purposes of the first and second proceedings.

What is relevant is the parties’ reasonable expectations of the stakes of each proceeding.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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