If a will challenge in Ontario does not meet the minimal evidentiary threshold before the Superior Court of Justice, having the decision overturned on appeal may seem implausible. As demonstrated by a series of recent appellate decisions, including Johnson v. Johnson, 2022 ONCA 682, Bitaxis Estate v. Bitaxis, 2023 ONCA 66 and most recently Giann v. Giannopoulos, 2024 ONCA 928, considerable appellate deference is to be shown to the original court’s assessment of the evidence and factual findings pertaining to the minimal evidentiary threshold. This means that unless the application judge made an error in principle when discussing the threshold, the only way to have the decision overturned on appeal is to point to a “palpable and overriding error” in the reasons of the application judge.

Palpable and overriding error has been described as a stringent standard of review: see Benhaim v. St. Germain, 2016 SCC 48. While the list of minimal evidentiary threshold case law referenced above does not go into detail as to what a palpable and overriding error is, there is an abundance of case law on point. Recently, in Hydro-Québec v. Matta, 2020 SCC 37, the Supreme Court of Canada held:

“An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result … As Morissette J.A. so eloquently put it in J.G. v. Nadeau, 2016 QCCA 167 … ‘a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions’ … The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see.”

To establish a palpable and overriding error related to the minimal evidentiary threshold, the task of an appellant is deceptively simple. First, they must establish that the court of first instance either misinterpreted the evidence adduced to meet the threshold, misinterpreted the evidence adduced in response, or failed to consider material evidence. Second, the appellant must convince the court that the error was so significant that it goes to the very core of the outcome of the application and that appellate intervention is merited.

Giann v. Giannopoulos, the Court of Appeal’s most recent decision addressing the minimal evidentiary threshold, demonstrates the futility of trying to establish a palpable and overriding error if the court’s analysis and findings pertaining to the threshold are grounded in the record. For example, one of the grounds of appeal in this case was that Justice Myers, who presided over the original application, made errors related to the evidence about testamentary capacity. The appellants’ claim that Justice Myers had conflated improvements in the testator’s mood with an improvement in his cognition was dismissed, with the Court of Appeal affirming there was no basis to interfere with the court’s finding that there was no evidence of testamentary incapacity at the time the will was executed. Moreover, the Court of Appeal held that it was open to Justice Myers to conclude that the appellants had “cherry-picked” the evidence to falsely portray the testator as having chronic incapacity.

The Court also affirmed that evidence adduced with respect to undue influence did not meet the threshold, as it had been answered fully and completely by the Respondents. As no palpable and overriding error related to undue influence was established, there was no basis to interfere with Justice Myers’ findings.

In dismissing the appeal, the Court of Appeal also noted that it was open to the application judge to find that the appellants’ evidence was insufficient in light of credibility and reliability issues. Justice Myers’ conclusion that much of the evidence presented was “spin”, which he described as “conjecture, assumption and allegations, spun together”, did not merit an appeal, as this criticism did not cloud Justice Myers’ analysis related to credibility, or his assessment of the evidence.

To learn more about Justice Myers’ original decision, see our blog post Spin is No Substitute for Evidence and episode #678 of our podcast, Hull on Estates.

It is also interesting to note that, in other jurisdictions where a will challenge must satisfy a threshold before proceeding to trial, findings related to credibility and the weighing of evidence may actually be grounds for appeal. For example, in Berta v. McStay, 2021 SKCA 51, the Saskatchewan Court of Appeal saved a will challenge on appeal after finding that the chambers judge was not entitled to weigh the evidence or make credibility findings in light of conflicts in the evidence. Rather, the court’s sole task was to determine whether there was a genuine issue to be tried which merited proving the will in solemn form. In cases where there are conflicts in the evidence on material points, the Saskatchewan Court of Appeal directed that a will challenge ought to be permitted to proceed rather than be dismissed at the threshold, as adverse findings of credibility cannot be made at this stage of the proceedings. In light of the Saskatchewan Court of Appeal’s decision, a potentially thought-provoking question to consider is whether the outcome of the appeal in Giann v. Giannopooulos would have been different had Justice Myers’ decision been appealed elsewhere in Canada.

Thank you for reading, and have a great day!

Ian.