14. Appeals

Once you have received the judge’s decision / judgment, you might want to appeal it. An appeal is where you argue in a higher court that the court that made the decision in your case made an error (usually in misapplying the law to the facts of your case). 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 that it was not reasonable for you to appeal. It is important to get legal advice. A lawyer can help assess your chances of success if you were to appeal a decision, and, if so, how to be as successful as possible.

In almost all cases, an appeal is not a new hearing or a new trial, but rather is a hearing on the record from the original trial. There are no affidavits or witnesses. The job of the appeal court is to decide if the trial judge made any legal errors at the trial / hearing or in the judgment.

It is not enough to be unhappy with the result of a trial. In order to successfully appeal, you must show that the judge’s decision was unreasonable or cannot be supported by the evidence, the judge made a mistake about the law, or there was a miscarriage of justice. You have to show that the judge made a mistake, and it is important that you are able to explain the mistake you think the judge made, for example by applying the wrong law or by applying the right law incorrectly.

Mistake about the facts: This is when the evidence given at trial was misunderstood by the judge. Appeals on mistake of fact are seldom allowed and a decision may only be overturned where it is found to be unreasonable or cannot be supported by the evidence. 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. Generally, if the judge’s decision about the law is clearly wrong, the case can be successfully appealed.

You can appeal the decisions of a judge by applying for an appeal to a higher-level court. For example:

• A decision from a provincial / territorial court will usually be appealed to the next level of court: the superior trial court, although sometimes appeals will 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 permissions to file an appeal.
• Some decisions from the court of appeal may be appealed to the Supreme Court of Canada.

To successfully make an appeal you must:

1. Show that your appeal involves a mistake of law or a misunderstanding of the facts. In other words, show that the judge misunderstood the law, or applied the law incorrectly, or that the judge made an unreasonable decision on the evidence.
2. Show that the judge’s mistake affected the outcome of your case.

Leave to appeal

For some appeals, you may have to ask permission to appeal the judgment of the lower court. This is called “applying for leave to appeal”. The Registrar or court staff may be able to provide some guidance, but you should check the Rules of Court to see if your matter requires leave to appeal or not.

To succeed with a leave application, you will need to show that you have an arguable case that the judgment that you appeal involves a mistake of law or facts, in other words that the judge applied the wrong law, or applied the right law in the wrong way. Alternatively, you must show that the judge’s decision is unreasonable given the evidence. However, even if you are able to show that there is a mistake of law or fact, the leave judge will still have to decide whether this is the kind of mistake that affected the outcome of your case.

Documents

If leave to appeal is granted, an appeal is started with a “notice of appeal” (usually filed with any application for leave). 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 pleadings (originating document), the trial transcript and the list of exhibits from the original trial.

You will also have to write a “factum” which is your written argument. There are rules for how each of these documents should be formatted.

The person who started the appeal will go first. Then the other side is given an opportunity to speak. After that, you will have an opportunity to address any new issue the other side raised.

In most appeals, judges will have:

• Written arguments (factums) of both parties, and
• The transcript of the proceedings before the lower-court judge / tribunal.

The judges (appeal courts usually sit with three judges or more) may ask you questions during your presentation to make sure they understand the case and what you are saying. If you submitted written arguments, you do not need to read out your written submission at the appeal hearing. Instead, you should just briefly comment on why you think the lower court judge made a mistake and what order you are asking for. The judges will either give a 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 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) and that it would have affected the outcome.

You should prepare:

• A notice of motion / application, 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. 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. Applications for the extension of time can be difficult. You should speak to a lawyer about your application.