Supreme Court of Canada addresses “distorting lens” metaphor of appellate review

In Salomon v. Matte‑Thompson, 2019 SCC 14, the Supreme Court of Canada recently addressed, for the first time, the metaphor of the “distorting lens” (« prisme déformant ») in the context of determining whether a trial judge made a palpable and overriding error. The Quebec Court of Appeal has used this metaphor on occasion since Ford du Canada ltée c. Automobiles Duclos inc., 2007 QCCA 1541. And although the other provincial appellate courts have not followed suit, that may change with Salomon. The Supreme Court accepted some limited role for the metaphor when applying the standards of appellate review. The “distorting lens” is not a new standard of review, but it may help explain why a particular error meets the “palpable and overriding error” standard.

The standards of appellate review

The standards of appellate review (as opposed to the standards of review in administrative law) have stood the test of time since Housen v. Nikolaisen, 2002 SCC 33. The standards have since been refined, importantly in H.L. v. Canada (Attorney General), 2005 SCC 25, but the framework is essentially engrained in the jurisprudence. Questions of law are reviewed for correctness; questions of fact are reviewed on the deferential standard of “palpable and overriding error”; and questions of mixed fact and law are also reviewed for “palpable and overriding error” unless an extricable error of law can be identified for correctness review. These standards are discussed in more detail in Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition, Chapter 2, Part B.

The metaphor of the “distorting lens”

Although the Housen standards of appellate review apply in Quebec the same as in the other provinces, the notion of the “distorting lens” (« prisme déformant ») has largely been particular to the jurisprudence of Quebec. The Alberta Court of Appeal invoked a similar notion in R. v. Russell, 1998 ABCA 184 (before Housen), although it did not have the same meaning as the prisme déformant metaphor that has gained traction in Quebec.[1] As the majority in Salomon summarized, the “Quebec Court of Appeal has on numerous occasions used the notion of a distorting lens when overturning findings made by trial judges that it considered to be tainted to some extent by a general misperception” (para. 38). This has raised the question whether the “distorting lens” supplements the “palpable and overriding error” standard—allowing for a more free-ranging re-weighing of the evidence through an new judicial lens—or whether it has some more limited role.

Both the majority and minority in Salomon gave the metaphor a more limited role, although there are notable differences in the application. For the majority of eight, Gascon J. described the “distorting lens” as “nothing more than a metaphor the Court of Appeal used to explain why the standard of appellate review established in Housen was met” (para. 37). That is, the Court of Appeal used the distorting lens metaphor to explain the palpable and overriding errors that it had identified in the trial judgment, not as a threshold for re-weighing the evidence. Gascon J. wrote:

[40] […] a distorting lens cannot be invoked as a substitute for identifying a reviewable error “or to mask the fact that an ‘error’ identified by an appellate court does not meet the high standard imposed by Housen […]. Although appellate courts may find this notion helpful in explaining the basis for their interventions, it in no way changes the standards articulated in Housen. An appellate court must identify a crucial flaw in the lower court’s decision, be it — depending on which Housen standard applies — an error of law or a palpable and overriding error. More particularly, the notion of a distorting lens does not warrant an appellate court’s reweighing the evidence or merely substituting its own factual findings for those of the trial judge. [emphasis added]

According to Gascon J., the Court of Appeal had held that the trial judge adopted a distorting lens (namely, a “narrow, siloed approach”), and that this lens led the trial judge to make “precisely identified palpable and overriding errors” (para. 41). In other words, the “distorting lens” was merely a descriptive tool to explain why the standard of review was met (“palpable and overriding error”), as opposed to an independent test doing independent work within the analysis. Gascon J. proceeded to articulate the specific palpable and overriding errors that the Court of Appeal had found, and held that the appellant had not identified any errors on the part of the Court of Appeal.

Writing in dissent, Côté J. offered a different view of the “distorting lens” and the role that it played within the Court of Appeal’s reasons. Côté J. agreed that “the distorting lens metaphor does not dispense with the requirement of identifying reviewable errors in accordance with the standards articulated in Housen” (para. 118). But Côté J. explained the metaphor’s role differently: it “may, at most, be useful to illustrate how certain palpable errors (or errors of law) taint the analysis of the evidence to the point of having an overriding effect” (para. 118). That is, the distorting lens may usefully give meaning to “overriding” within “palpable and overriding error”—nothing more.

According to Côté J., however, the “distorting lens” is not a full explanation. Rather, Côté J. wrote that appellate courts still must “explain why the trial judge erred by viewing the case through the impugned ‘distorting lens’, why that ‘error’ amounts to more than a mere divergence in opinion, and precisely how it distorted the trial judge’s analysis and affected the outcome of the case” (ibid.).

Applied to the present case, Côté J. would have held that the Court of Appeal “merely preferred a different ‘lens’ than the one used by the trial judge” (para. 119). The Court of Appeal had not explained why the trial judge’s “lens” was itself a reviewable error (other than holding that it was insufficiently “broad”), but proceeded nonetheless to reassess and reweigh the evidence. Côté J. essentially viewed the Court of Appeal’s approach as having reversed the steps of proper appellate review: the Court of Appeal started with a re-examination of the entire record, determined that the trial judge’s approach to the evidence was too narrow, and from that conclusion identified “palpable and overriding errors” in the fact-finding to be substituted on appeal. Such an approach would seem to be more interventionist than the well-established notion that “palpable and overriding error” is not a “needle in a haystack, but a beam in the eye”. As Côté J. wrote, it “should not be a strenuous task” to identify palpable and overriding errors requiring appellate intervention.

Conclusion

With the majority’s conclusion, the “distorting lens” metaphor is likely here to stay, and likely to visit the other provinces beyond Quebec. Its meaning will likely further settle as the Supreme Court’s guidance is applied in the appellate courts below. As that process unfolds, at least one thing is clear: the “distorting lens” does not replace the existing standards of appellate review from Housen. Identifying a different “lens” is not itself sufficient to intervene on factual findings. The appellate court must still identify “palpable” errors, and must still explain why they are overriding.


[1]      See also R. v. Majel, 2013 ONSC 2035, para. 27.

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Sopinka and Gelowitz on the Conduct of an Appeal, 4th Edition

Appellate litigators and judges have turned to Sopinka and Gelowitz on the Conduct of an Appeal for guidance since its first publication in 1993. Now in its fourth edition, this authoritative text remains the go-to resource for both novice and seasoned litigators seeking direction on best practices in preparing and presenting appeals. Originally written by former Supreme Court of Canada Justice John Sopinka and Osler partner and litigator Mark Gelowitz, this latest edition adds Osler’s David Rankin as co-author. This up-to-date version is the most current textbook available on appellate practice in Canada and is invaluable for lawyers looking to avoid costly errors while gaining a deep understanding of the procedural and jurisdictional aspects of launching and conducting appeals.

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