Is an error deemed to be overriding a finding of fact?
Ontario, Canada
The following excerpt is from Windsor-Essex Children’s Aid Society v. E.W., 2019 ONSC 3404 (CanLII):
An error is overriding when it carries with it sufficient significance so as to vitiate the challenged finding of fact. Where the challenged finding of fact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a palpable error does not automatically render the error an “overriding” one. To be “overriding”, the error must go to the root of the challenged finding of fact, such that the fact cannot safely stand in the face of that error: see Schwartz v. Canada, 1996 CanLII 217 (SCC), [1996] 1 S.C.R. 254 at p. 281, Waxman at para. 297 (emphasis added).
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