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28 Advoc. Q. 40 (2004)
The Standard of Appellate Review and the Ironies of Housen v. Nikolaisen

handle is hein.journals/aqrty28 and id is 74 raw text is: THE STANDARD OF APPELLATE REVIEW AND
Paul M. Pereli*
It is ironic that Housen v. Nikolaisen' will become the leading con-
temporary case about the standard of appellate review. It is easy to
explain why Housen will be the leading case: taken together, the major-
ity judgment written by Iacobucci and Major JJ. (McLachlin C.J.C.,
L'Heureux-Dub6 and Arbour JJ. concurring) and the minority judgment
written by Bastarache J. (Gonthier, Binnie and LeBel JJ. concurring)
are zealous and fulsome debates by the Supreme Court of Canada
about the rules and the rationale for appellate review across the full
spectrum of errors of fact, errors of factual inference, errors of mixed
law and fact and errors of law. Why it is ironic that Housen should be
the leading case is more difficult to explain. That explanation, which
involves describing the facts of the case, the results in the lower courts,
the attack on and defence of the trial judge's reasons for judgment in
the Supreme Court of Canada and the rhetoric of the judgments is the
task of this article.
On the afternoon of July 17, 1982, Douglas Nikolaisen drove his
pickup truck to a barbecue at the home of Craig and Toby Thiel. The
home was on Snake Hill Road, a rural road in Shellbrook,
Saskatchewan. Nikolaisen had not been on the road before, which was
a Type C local access road, essentially just a trail that had been blad-
ed to remove ruts and to permit vehicle passage. Saskatchewan has
45,000 kilometres of such roads. These roads are not subject to the
province's road sign policy but a municipality may decide to post signs
if it becomes aware of a road hazard.
While at the barbecue, Nikolaisen had four or five drinks. He left
around 10:00 or 10:30 p.m. and went to his own home for a few hours
before driving to the Sturgeon Lake Jamboree where he consumed
more alcohol and where he met Paul Housen. They stayed together
and, on the next morning, July 18, Nikolaisen drove a second time to
*  D.Jur., WeirFoulds LLP, Toronto.
1. (2002), 211 D.L.R. (4th) 577, [2002] 2 S.C.R. 235, [2002] 7 W.W.R. 1.

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