Exercising Discretion

From Riverview Legal Services

C.B. Distribution Ltd. (Bankruptcy), Re, 2004 CanLII 24874 (ON SC)

In Poskitt v. Poskitt and Bishop 1949 CanLII 221 (BC CA), (1949) 3 D.L.R. 798 (B.C. C.A.) the court said, on the subject of discretion but in a context other than bankruptcy, at p. 812:

A discretion means that at least two proper judicial decisions are open to the Judge. It does not mean that if he acts contrary to common sense and justice, that his mere doing so, in itself is an exercise of discretion. When this happens it is not a mistake in the exercise of discretion in its proper sense as judicial choice between two judicial decisions, a defensible exercise of discretion, but it is in truth a failure to exercise discretion at all. The discretion must be exercised judicially according to common sense and justice, and in a manner which does not occasion a miscarriage of justice, and see Murdoch v. A.-G. B.C.,1939 CanLII 418 (BC CA), (1940) 2 D.L.R. 74 at p. 77, 73 Can. C.C. 222 at pp. 225-6. 54 B.C.R. 496 at p. 501; Blunt v. Blunt, [1943] A.C. 517 at p. 527 and Taylor v. Vancouver Gen'l Hospital (1945), 62 B.C.R. 79 at p. 80.

Signal Chemicals Ltd. v. Singh, 2014 ONSC 5228 (CanLII)

[10] The standard of review of an order, whether final or interlocutory, is correctness with respect to questions of law. Where the Master exercises discretion, the Court on appeal must determine whether the correct principles were applied and whether the master misapprehended the evidence such that there is a palpable and overriding error Zeitoun v. The Economical Insurance Group (2008), 2008 CanLII 20996 (ON SCDC), 91 O.R. (3d) 131 (Div. Ct.), aff'd 2009 ONCA 415 (CanLII)).

Hasselsjo v. Effort Trust, 2019 ONSC 990 (CanLII)

[21] Even if an appeal is restricted to questions of law, a finding of fact in the absence of reliable evidence or a serious misapprehension of the evidence can constitute an error of law: e.g. Manpel v. Greenwin Property Management.

[37] ... In the absence of any analysis as to the degree to which the litigation conduct constituted a “substantial” interference, the Board committed an error in law.

Triten Corp. of Canada v. Borden & Elliot, 1998 CanLII 18858 (ON SC)

On the issue of prejudgment interest, Triten was awarded an interest rate of 7 per cent rather than the presumptive rate of 13.9 per cent calculated pursuant to s. 127 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Triten submits the arbitrator committed an error in law when he awarded prejudgment interest at the average Bank of Canada prime rate in that he did not take into account the criteria set out in s. 130(2) of the Courts of Justice Act.


A successful plaintiff has a prima facie right to prejudgment interest at the presumptive rate. Before a court can depart from the presumptive rate, s. 130(2) of the Courts of Justice Act requires that specific factors be taken into account. In this case, those factors were not taken into account. Had they been considered, they would have substantially favoured no departure from the presumptive rate. In my view, the arbitrator's failure to consider the criteria enumerated in s. 130(2) amounts to an error in law. I therefore allow the plaintiffs' appeal.

CAS of Toronto v. AA, 2013 ONSC 2617 (CanLII)

[9] ... See also CAS of Peel v. W, 1995 CanLII 593 (ON CA), [1995] OJ no 1308 (CA), at par. 47, where the Court of Appeal considered the extent to which a trial judge can direct the evidence in a protection case and concluded, “… for the most part it must be for counsel to determine the course that the hearing will take.” The mother’s lawyer at trial presented evidence on the mother’s behalf and cross examined the CAS witnesses. There was little if any scope, and no need, for the trial judge to intervene in this case to require more evidence.

North Avenue Road Corporation v Travares, 2015 ONSC 6986 (CanLII)

[35] Even if this was a mootness doctrine case, pursuant to Borowski, in exercising discretion to hear this case, a court is required to bear in mind three basic rationales: the absence of an adversarial relationship, the need to promote judicial economy and the need for the court to demonstrate an awareness of its proper law-making function. In this case, and as the Board found, the problem is not remedied and continues to be a contentious issue between the parties. With this finding, in the exercise of its discretion, the fundamental error of the Board, in my view, lies in the application of the law, and specifically, in the application of s. 20 of the RTA. In addition, the Supreme Court also set out the consideration whether it is in the public interest to deal with the merits in order to settle the law. This is a housing issue. Smoking in residential units where the units such as the one before this court are so close and have life implications for the other, is of public interest.