A page 386 of the "General Part" of the 1953 edition of his book entitled Criminal Law, English jurist Glanville Williams wrote a few words that must be on the mind of, if not motivating every litigant who seeks to appeal:

"Everybody is supposed to know the law except Her Majesty's judges who have a Court of Appeal set over them to put them right!"

In Canada, each province has a court of appeal which hears appeals from its superior level courts (and sometimes a superior level court can hear appeals from a provincial court).

There is another appeal even from these courts of appeals to the Supreme Court of Canada but the Supreme Court has a stringent screening process. The threshold is set out at paragraph 40 of the Supreme Court Act:

"(A)n appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court."

The provincial courts of appeals do not set as high a hurdle and in many cases, a right to appeal is automatic and exists not only from the superior level or provincial courts but also, inexplicably, from some administrative tribunals!

Ontario Court of AppealHowever, there are some limited cases where an intervening step is required and a litigant must receive permission from the Court of Appeal before lodging an appeal (called an application for leave to appeal). In each jurisdiction, specific thresholds may be in place such is, in Ontario, circa 2008, no appeal light from a final order of the Superior Court of Justice unless the judgment amount exceeds $50,000 (Court of Appeal of Ontario, based at Osgoode Hall, Toronto, pictured).

But given the difficulty in obtaining leave to appeal from the Supreme Court of Canada, for most cases, the provincial courts of appeal are the final appellate courts; the court of the "last stand" or of "last resort".

An appeal court, in theory - as there are always exceptions - does not re-hear or re-try the matter. It is limited to reviewing the record of what went on in the court from which the appeal is lodged.

The Supreme Court of Canada adopted the following words in reference to the deference an appellate courts will have for the court below, also known as the "standard of review" (Housen v Nikolaisen):

"The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities....

"It is premised on the notion that finality is an important aim of litigation.  There is no suggestion that appellate court judges are somehow smarter and thus capable of reaching a better result.  Their role is not to write better judgments but to review the reasons in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge.

"What is palpable error?... Palpable is plainly seen."

In that regard, in most appeals, a litigant is limited to the use of pleadings, evidence or other documents that were before the court from which the appeal has been lodged.

Further, the appeal is against an order, not the reasons for that order. You can't bother an appeal court with an appeal stating: "I agree with the decision; just not the reasons for it."

No new evidence is allowed before a court of appeal unless the court exceptionally allows it - a very rare occurrence.

In order to promote finality of judicial decisions, most appeals must be announced to the other side within a relatively short period of time, and by way of a document usually called "notice of appeal". This deadline is often 30 days from the date of the order appeal from; again, there may be exceptions depending on the nature of the appeal.

Any attempt to appeal after the deadline for filing a notice of appeal must be accompanied by the consent of the other side or the litigant will have to ask a judge of the court for special permission to file late;an always difficult application.

Appeal fees can be much higher: in Alberta, the filing fee for each notice of appeal is $600 (as of 2008).

Perhaps the most outrageous feature of every court of appeal is the strict imposition of rules of procedure. After you have spent hundreds of hours putting together your appeal documents, they can be summarily rejected by a clerk of the court for reasons of minor details such as wrong placement of page numbering, wrong format of page numbering, wrong color of page cover, wrong font or font size, failure to properly flush left the mandatory top-of-the-page annotation ... and other elements foreign to the attainment of justice.

In point of fact, apparently lost by the administrative judges of the various courts of appeal, is that the procedural elements are so overwhelming and intimidating that they contribute to the decision of many litigants to not appeal; they are scared off by the sheer complexity of appellate requirements.

This does not serve justice. On the contrary, it buffers the lower courts from a legitimate review of the occasional poor judgment, especially decisions of judges in small or remote communities, which then stand unchallenged, like a virus in the law, affecting not only the litigant but the population at-large.

Appeals are so complex that it has spawned a cottage industry of paralegals and law firms specialize in preparing appeal documents and otherwise advising on the appeal process - catering not only to lay litigants but to lawyers as well (I know; I've used them!).

The appeal process varies slightly from province to province as does the terminology but for the most part, it is similar to the situation in British Colombia which is as follows:

  • After you file your notice of appeal and give a copy to the other side, within 60 days you have to file a relatively slim Appeal Record (which includes all of the pleadings, the order being appealed, and the notice of appeal). This book must have a blue cover and must be printed only on the left side of the page.
  • Then you have to file a transcript of what happened in the court below. This can be very expensive especially if you are appealing from a trial where there has been several days of evidence. For many litigants, the cost of the transcript alone makes an appeal prohibitively expensive. Surprise: in BC, the transcript must have a red cover!
  • The Court of Appeal will also want to have a copy of all the evidence that was used or available to the court from which the appeal is being lodged. That must be bound (with a blue cover!), in an Appeal Book.
  • Finally, 30 days after filing the appeal book and transcript, the appellant files their written submissions - called a factum - which cannot exceed 30 pages and must have a light beige cover. In British Columbia, the court demands that the contents of a factum follows a specified order.

Supreme Court of CanadaAn appeal does not automatically stop, suspend, postpone or stay the decision being appealed from. Those can only be stayed by a separate application to the court. Often, when time is of the essence, the mere necessity of obtaining an interlocutory order to stay a decision from which an appeal has been lodged - and time delays inherent therein - make an appeal moot.

Ontario provides, §106 of the Courts of Justice Act:

"A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just."

By way of another example, British Columbia provides that the Court of Appeal, at §18 of the Court of Appeal Act:

"After an appeal or application for leave to appeal is brought, a justice may, on terms the justice considers appropriate, order that all or part of the proceedings, including execution, in the cause or matter from which the appeal has been taken are stayed in whole or in part."

Most appeal hearings are before a quorum of three judges of the Court of Appeal - called a "panel". Rarely, they might sit as five. The Supreme Court of Canada, in the most significant cases, sits as a full bench of 9 (pictured).

The panel, by unanimous or majority decision, has a number of options including:

  • Dismiss the appeal;
  • Order a new trial or hearing; or
  • Issue the decision that it feels ought to have been issued by the court from which the appeal was lodged.

The scope of "appeal law" is vast and in far too many regards, differs from jurisdiction to jurisdiction. Most of the time, the higher level the court, the more remote it is from the general population in terms of accessibility. This is, at this time, the nature of the beast.

But because of this complexity, this article can only touch the surface and ought not, in any event, serve as anything more than general legal information to be supplemented by consultation with a lawyer versant in appellate matters in your jurisdiction.


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