Duhaime's Law Dictionary


Overriding Error Definition:

A standard of appellate review, an error that must have altered the result or may well have altered the result.

Related Terms: Palpable Error, Question of Fact, Question of Mixed Law and Fact, Standard of Review

Often combined as follows "overriding and palpable errors of fact" to articlate the bar of an appellate court's review of a lower court's decision where the issue on appeal is a question of fact or, even, a question of mixed fact and law.

Note these words of Madam Justice Smith in Fisher v Fisher:

"The standard of review on questions of fact is palpable and overriding error. Palpable error is one that is readily or plainly seen. Overriding error is one that must have altered the result or may well have altered the result."

In 1992, Justice Hunter, in Weist v Zordel (a family law case), referred to the principles of appellate review as the Court of Appeal and the requirement of a palpable and overriding error:

"To constitute such a palpable and overriding error, one of the following must exist: (1) there is no evidence to support his decision, or (2) he considered irrelevant factors, or (3) he failed to consider relevant factors, or (4) the award is so inordinately high as to be erroneous."

REFERENCES:

  • Fisher v. Fisher, 2009 BCCA 567. Cited with approval in K.L.K. v. E.J.G.K., 2011 BCCA 276 [NOTE 1].
  • Weist v. Zordel, 39 R.F.L. (3d) 171 (Saskatchewan Court of Queen's Bench)

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