This Div is a JS Trigger
Issue 68 | March 2021


This newsletter includes information to help lawyers reduce the likelihood of being sued for malpractice. The material presented is not intended to establish, report, or create the standard of care for lawyers. The articles do not represent a complete analysis of the topics presented, and readers should conduct their own appropriate legal research.
Some Practice Advice on Arguing Appeals

In the recent case of Western Oilfield Equipment Rentals Ltd. v. M-I LLC, 2021 FCA 24, the Court provided this advice on arguing an appeal:

[9] Before continuing, I feel compelled to say a few words about the lack of wisdom of raising so many issues on appeal, especially so many issues that are so factually suffused, without due attention to the standard of review on such issues. Firstly, the appellants’ approach suggests that they themselves cannot identify any issues that are particularly strong. This suggestion was compounded at the hearing of the appeal when, despite the Court’s suggestion that the appellants focus on their strongest points, the appellants insisted on addressing all of the issues raised in their memorandum of fact and law. Not only did this approach miss an opportunity to highlight certain of the issues, but it also prevented the appellants from delving deeper into points that might have merited more discussion. In addition to hurting the appellants’ own case on appeal, this approach also made unnecessary additional work for the Court and delayed the release of this decision. I have additional comments below about the appellants’ treatment of the standard of review.

III. Standard of Review

[10] The appellants pay scant attention to the standard of review in their submissions, and therefore it is important to state the applicable standard here.

[11] As indicated in Housen v. Nikolaisen2002 SCC 33, [2002] 2 S.C.R. 235 (Housen), the standard of correctness applies to questions of law (see para. 8), but findings of fact or of mixed fact and law are reviewable only where the Federal Court has made a palpable and overriding error (see paras. 10 and 36). The standard of palpable and overriding error is not easily met. As stated by this Court in South Yukon Forest Corp. v. R.2012 FCA 165, 4 B.L.R. (5th) 31 at para. 46, and quoted with approval by the majority of the Supreme Court of Canada in Benhaim v. St-Germain2016 SCC 48, [2016] 2 S.C.R. 352 at para. 38:

Palpable and overriding error is a highly deferential standard of review. ...“Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.

[12] The deference given to the Federal Court on issues of fact is warranted for several reasons, not least because the judge at first instance was present throughout the trial to hear all the witnesses and see all the evidence on the many issues in this case, and was hence in a much better position than members of this Court to consider and weigh the evidence: see Housen at para. 12.

[13] Though the parties do not seem to disagree on the applicable standard of review, it will be necessary to address its application to certain of the issues discussed below. As a general comment, I note that the appellants could not hope to be successful on any issue in which the standard of review is palpable and overriding error applies without identifying the alleged error by the Federal Court, and explaining why the error should be considered palpable and overriding. Even after this reality was noted at the hearing, most of the appellants’ arguments failed to focus on the appropriate points, and were instead misguided attempts to have this Court re-weigh the evidence and re-characterize the facts. That is not our role.