Page: 39
“are not to be reversed [on appeal] unless it can be established that
the trial judge made a ‘palpable and overriding error’” (see Housen
v Nikolaisen, 2002 SCC 33 at para 10; see also para 25; HL v
Canada (Attorney General), 2005 SCC 25 at para 74; and R v
Clark, 2005 SCC 2 at para 9).
[emphasis added]
[88] The Supreme Court of Canada in Housen discussed the deference to be afforded to a trial
judge’s factual findings and factual inferences:
22
Second, with respect, we find that by drawing an analytical
distinction between factual findings and factual inferences, the
above passage may lead appellate courts to involve themselves in
an unjustified reweighing of the evidence. Although we agree that
it is open to an appellate court to find that an inference of fact
made by the trial judge is clearly wrong, we would add the caution
that where evidence exists to support this inference, an appellate
court will be hard pressed to find a palpable and overriding
error. As stated above, trial courts are in an advantageous
position when it comes to assessing and weighing vast quantities of
evidence. In making a factual inference, the trial judge must sift
through the relevant facts, decide on their weight, and draw a
factual conclusion. Thus, where evidence exists which supports
this conclusion, interference with this conclusion entails
interference with the weight assigned by the trial judge to the
pieces of evidence.
23
We reiterate that it is not the role of appellate courts to
second-guess the weight to be assigned to the various items of
evidence. If there is no palpable and overriding error with respect
to the underlying facts that the trial judge relies on to draw the
inference, then it is only where the inference-drawing process
itself is palpably in error that an appellate court can interfere with
the factual conclusion. The appellate court is not free to interfere
with a factual conclusion that it disagrees with where such
disagreement stems from a difference of opinion over the weight to
be assigned to the underlying facts. As we discuss below, it is our
respectful view that our colleague’s finding that the trial judge
erred by imputing knowledge of the hazard to the municipality in
this case is an example of this type of impermissible interference
with the factual inference drawn by the trial judge.
[underlining in original, emphasis in italics added]