The Conduct of an Appeal Blog

Sorila v. Chan: Standard of Appellate Review not a matter of “directions”

Oct 4, 2016 2 MIN READ
Mark A. Gelowitz

Partner, Disputes, Toronto

In Sorila v. Chan, the British Columbia Court of Appeal held that it was inappropriate for the standard of review to be determined by way of directions. The court ruled that determining the standard of review to be applied to an appeal is an issue which goes to the substance of that appeal, and which therefore must be determined and applied by the judge hearing the appeal.

The appellant had brought an application to commence third party proceedings, which was dismissed by a master. The appellant subsequently appealed the master’s decision to a B.C. Supreme Court judge. In that appeal, the judge in chambers provided directions that the standard of review to be applied was the “clearly wrong” standard. The appellant – without proceeding with the appeal – instead appealed the chambers judge’s directions regarding the appropriate standard of review.

The Court of Appeal quashed the chambers judge’s directions, noting that the standard of review should not be determined by way of directions:

[20]        The standard of review on an appeal from a master is a nuanced question, requiring an analysis of the importance of the master’s ruling to the final disposition of the case. That analysis depends very much on the circumstances of an individual case: see Kalafchi v. Yao, 2015 BCCA 524 (CanLII), particularly at para. 16.

[21]        The correct standard of review from the order of a master will often be closely tied to the substantive issues on the appeal. It is therefore appropriate that it be decided by the judge hearing the appeal, as part of the appeal proceedings.

[22]        It was, therefore, improper for the parties to seek to resolve the issue of standard of review by way of directions rather than in the appeal itself. The problem is compounded in this case, because the judge who gave the directions is now retired, and will not be hearing the substantive appeal. His ruling should not bind the judge who hears the appeal, who may well take a different view of matters.