What is the proper test for determining whether the facts establish special circumstances?
Alberta, Canada
The following excerpt is from Neis v. Yancey, 1999 ABCA 272 (CanLII):
This case presents two legal issues for consideration: first, whether the functional or analytical approach is to be used; and second, the elements that might make up special circumstances. The standard of review for those two legal issues is correctness. However, the question whether the facts establish special circumstances in accordance with the test is a matter of fact finding and discretion in an interlocutory matter. The standard of review is one of reasonableness. An appellate court should be slow to interfere with such a finding unless the judge has made a significant error in principle based on a misunderstanding of the law or the evidence: Vickery v. Nova Scotia, 1991 CanLII 90 (SCC), [1991] 1 S.C.R. 671. ANALYSIS What is the proper test?
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