Steps in a Lawsuit: Appeals

If, following a Supreme Court trial, a party is unhappy with the decision of the judge, they have the right to appeal the decision to the Court of Appeal. This must be done within 30 days of the decision being rendered.

The two typical grounds on which a party would appeal a trial decision are either that the judge got the law wrong or got the facts wrong. The level of scrutiny the Court of Appeal will give to the decision depends on which of those two grounds are alleged. This is called the standard of review. The Court of Appeal expects that judges will get the law correct and, as such, will more heavily scrutinize their decision to make sure they got it right. When it comes to the facts of a case, the Court of Appeal is more deferential to trial judges because, of course, they got to sit through the trial and hear the evidence. It’s only when the judge clearly got a fact wrong and, had they not, the decision would have been different, will the Court of Appeal intervene.

The appeal process consists of the appellant filing a notice of appeal. They will then be responsible for ordering and filing a transcript of what was said at the trial and books of exhibits that were entered into evidence. The appellant and the other party resisting the appeal, called the respondent, will then file factums that set out their position on the appeal.

The parties will then make arguments before the Court of Appeal. The Court of Appeal will consist of a panel of judges, usually 3 although in important cases 5 judges will hear the appeal. The appellant makes their submissions first followed by the respondent. The appellant is then offered an opportunity to respond.

As with trial judges, the Court of Appeal will usually reserve making their decision to a later date and, when that time comes, issue written reasons. The Court of Appeal’s options are generally to allow the appeal in whole or in part, or dismiss the appeal. If the appeal is allowed, the Court of Appeal can overturn the trial judge’s decision on the issue under appeal and replace it with their own decision. Another option is to send the matter back to trial to have the issue re-determined.

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