Appeal deadlines for filing and service are very short. Depending on the jurisdiction and type of matter, you may only have a few weeks or even days to file an appeal so you must act quickly. Failing to meet a deadline could be fatal to your appeal.
Appeal deadlines, forms and procedure vary so it is vital that you check the Rules of Court in your jurisdiction as soon as possible after you receive a judgment on your case, to determine your appeal deadline.
If you are acting without the assistance of a lawyer, you may be able to find helpful information and “how to” advice on the appeal court’s website. Staff in the appeal court’s registry office can also provide advice about appeal procedures. Procedures will vary somewhat from one appeal court to another and each appeal court has its own set of Rules that set out what is required on an appeal.
- 11.1 What is an Appeal?
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Once you have received the judge’s or jury’s decision / order / judgment, you might want to appeal it if you disagree with the result. An appeal is where you argue in a higher court that the court that made the decision in your case made an error. The decision to appeal should not be taken lightly. Making an appeal can be time-consuming and costly, due to the cost of transcripts, preparing your written appeal arguments and the risk of cost orders if the appeal court decides against you on the appeal. It is important to get legal advice. A lawyer can help assess your chances of success if you were to appeal a decision.
In almost all cases, an appeal is not a new hearing or a new trial. An appeal is usually a hearing on the evidentiary record from the original hearing or trial. There are no new affidavits, witnesses or juries in appeal cases. The job of the appeal court is to decide if the lower court judge made any errors at the trial / hearing or in the judgment.
It is not enough to be unhappy with the result of a trial or other proceeding. In order to successfully appeal, generally you must show that the judge’s decision was unreasonable or cannot be supported by the evidence or the judge made a mistake about the law.
Mistakes about the facts
This is when the evidence presented at the trial or hearing was misunderstood by the judge. Appeals on mistakes of fact are seldom allowed and a decision may only be overturned where a finding of fact is found to involve a serious error that affected the judge’s decision. Generally, appeal courts will not overturn a lower court’s decision regarding which witnesses were credible or telling the truth.
Mistakes about the law
Not every error made by a judge will lead to a successful appeal. However, if the judge’s decision about the law is wrong, the case can usually be successfully appealed. When there is a jury, you may also be able to appeal if the judge made an error in their instructions to the jury.
- 11.2 Process of Appealing
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You can appeal the decisions of a trial or hearing judge to a higher-level appeal court.
For example:
- A decision from a provincial / territorial court will usually be appealed to the next level of court, the superior trial court (an appeal court for this purpose), although some appeals go directly to the Court of Appeal.
- A decision from a superior trial court will be appealed to the Court of Appeal, although you may have to apply for permission to file an appeal.
- Decisions of a Court of Appeal may be appealed to the Supreme Court of Canada but only if the Supreme Court grants permission to appeal.
Leave to appeal
For some appeals, you have to ask permission to appeal the decision / order / judgment of the lower court. This is called “applying for leave to appeal”. You should check the Rules of Court to see if your matter requires leave to appeal.
To succeed with a leave application, you will need to show the court of appeal that your proposed appeal involves a mistake of law or an important mistake of fact. In other words, if leave to appeal is given, you are expected to be able to show that the judge applied the wrong law or misinterpreted the law, or applied the right law in the wrong way, or came to a decision that is unreasonable in light of the evidence.
Even if you are able to show that there appears to have been a mistake of law or fact, the appeal court may still have to decide whether your appeal is the kind of case that deserves to be heard on appeal and should be allowed to proceed.
Documents
An appeal is started with a “notice of appeal”. The notice of appeal should set out the errors of law or fact on which the appeal is based. Generally, the court will only deal with the grounds set out in the notice of appeal. It is possible to later amend the notice of appeal to set out new grounds of appeal, but that should be done as soon as possible and well before the hearing of the appeal itself.
You will also need to file an appeal book which will generally include the notice of appeal, the documents that began the proceeding in the lower court, affidavits (if any), the trial transcript and the list of exhibits from the original trial or proceeding.
You will likely also have to write a “factum” which is your written argument. There are court rules for how each of these documents should be formatted.
- 11.3 At the Appeal Hearing
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The person who started the appeal will speak first. Then the other side is given an opportunity to speak. After that, the person who started the appeal will have an opportunity to address any new issue the other side raised.
In most appeals, the judges will have:
- the written arguments (factums) from both parties; and
- the transcript of the proceedings before the lower-court judge / tribunal.
The judges might ask you questions during your presentation to make sure they understand the case and what you are saying. If you submitted a written argument (factum), you do not need to read out those arguments at the appeal hearing. Instead you should just briefly summarize them and explain why you think the lower court judge made a mistake and what you want the appeal court to do. The judges will either give their decision at the end of the appeal or will reserve their decision to a later date.
New Evidence
Generally new evidence is not allowed to be presented on appeal. Most appeal hearings are based on the record (i.e. the transcript and exhibits or affidavits from the lower court) of the previous trial or hearing. If there is evidence you think the court should have which was not presented at the trial or hearing, you must ask for permission to refer to that new evidence. You must show that the evidence you want to present could not have been presented at the trial or hearing (e.g. you didn’t know about it), that the proposed evidence is reliable and that it would have affected the outcome.
You should prepare:
- a notice of application or notice of motion as required by the court rules; and
- an affidavit explaining why the evidence was not presented and why you think it would have been important to the outcome of the trial or hearing.
You should attach the new evidence to your affidavit or include it in your affidavit. In general, the judges hearing your appeal will also hear your application to present new evidence, and will decide on both your application to present new evidence and the appeal at the same time.
Time limits
There are strict deadlines that say when an appeal can be made. If you are outside those deadlines, and if you want to appeal the judgment in your [trial / hearing], you may be able to apply for an extension of time. Extensions of time are not easy to obtain. You should speak to a lawyer about your application.