Duhaime's Law Dictionary


Palpable Error Definition:

A standard of appellate review, an error that is readily or plainly seen.

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

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

In Canada's Supreme Court, a 2005 decision (H. L. v Canada), shed some light or, depending on your perspective, further shadows and darkness, on this esoteric area of the law on which so many appeals hinge:

"Palpable and overriding error is at once an elegant and expressive description of the entrenched and generally applicable standard of appellate review of the findings of fact at trial. But it should not be thought to displace alternative formulations of the governing standard....

"An appellate court will not interfere with the trial judge's findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.

"The test is met as well where the trial judge's findings of fact can properly be characterized as unreasonable or unsupported by the evidence. There is no meaningful difference between a standard of clearly wrong and a standard of palpable and overriding error.

"Palpable (means) ... clear to the mind or plain to see. No error could lead to a reversal unless it was overriding in the sense that it discredits the result. The palpable and overriding error standard, apart from its resonance, nevertheless helps to emphasize that one must be able to put one's finger on the crucial flaw, fallacy or mistake....

"The standard of review for inferences of fact, in ... Canada, is that of palpable and overriding error and its functional equivalents, including clearly wrong, unreasonable and not reasonably supported by the evidence."

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."

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