Appealing a Decision

An appeal is not a second trial

This is the misunderstanding to clear first. An appeal is not a chance to run the case again in front of different judges. There are no witnesses, you do not give evidence, and new evidence is admitted only in narrow circumstances.

The appeal court reads the record of what happened at trial, reads written argument from each side, hears oral submissions from the lawyers, and decides whether the decision below can stand. Being dissatisfied with the result is not a ground of appeal. Something has to have gone wrong.

What has to have gone wrong

Appeal courts do not treat every part of a judgment the same way.

• Questions of law are reviewed for correctness. If the trial judge applied the wrong legal test, the appeal court can simply substitute the right one.
• Findings of fact attract real deference and are overturned only for what the courts call a palpable and overriding error, meaning an error that is obvious and that affected the result.
• Questions of mixed fact and law generally attract the same deference, unless a legal error can be extracted from them.

Housen v Nikolaisen, 2002 SCC 33.

That last point disappoints more prospective appellants than anything else. Credibility findings are the hardest thing in the system to overturn, because the trial judge saw the witnesses and the appeal court did not.

The deadline is thirty days

An appeal is commenced by serving a notice of appeal, generally within 30 days after the order appealed from was made.

Rules of Civil Procedure, rules 61.04 and 61.05.

Thirty days is short, and it runs from the order rather than from the point at which you have decided what to do. Where leave to appeal an interlocutory order is required, the timeline is shorter still. Missing the deadline is not always fatal, but it means bringing a motion to extend time, which is not granted as a matter of course.

If you are thinking about an appeal, raise it immediately rather than after you have absorbed the judgment.

Where the appeal goes

Ontario has two appellate destinations for civil matters and picking the wrong one wastes time and money.

An appeal from a final order of a Superior Court judge generally goes to the Court of Appeal for Ontario, except where the judgment does not exceed $50,000 exclusive of costs, in which case it goes to the Divisional Court. Appeals from interlocutory orders go to the Divisional Court and require leave. A decision of the Divisional Court can be appealed onward to the Court of Appeal, but only with leave and only on a question that is not one of fact alone.

Courts of Justice Act, ss. 6 and 19.

The line between a final and an interlocutory order is not always obvious, and getting it wrong is a common and expensive mistake.

How long it takes and what it costs

Expect the better part of a year, often more, between filing and a decision. Transcripts have to be ordered and prepared, an appeal book and factums have to be produced, and the court has to find hearing time.

An appeal is also a fresh costs exposure. If you appeal and lose, you can expect to pay costs of the appeal in addition to whatever was ordered below. If you are the successful party at trial and the other side appeals, you have to respond, and that is not free either.

Your existing retainer probably does not cover it

Worth knowing before the judgment arrives. A contingency fee agreement for the trial of an action does not ordinarily extend to an appeal, and ours does not. An appeal is a separate engagement requiring a new agreement on terms discussed at the time.

The same is true in reverse. If a judgment in your favour is appealed, defending it is separate work and needs its own arrangement.

What an appeal court can do

Dismiss the appeal and leave the decision standing. Allow the appeal and substitute a different result, including a different damages award. Or allow the appeal and order a new trial, which is the outcome nobody wants, because it means starting the trial process again.

An appeal court can also vary part of a decision while leaving the rest alone.

If the other side appeals

Winning at trial does not end the matter until the appeal period passes. If the losing side appeals, the judgment may not be enforceable in the meantime, and money you expected may be delayed by a year or more.

You may also want to cross-appeal, if there are parts of the decision you were unhappy with but would not have appealed on their own. That decision has its own short timeline.

Common questions

Can I appeal because the damages were too low?

Sometimes, but it is difficult. Assessment of damages is largely a factual exercise attracting deference, so an appeal generally needs to identify a legal error in the approach rather than simply argue for a higher figure.

Can I introduce new evidence on appeal?

Only in limited circumstances, and the test is demanding. An appeal is decided on the record from the court below.

Do I have to attend the hearing?

You are entitled to attend and many clients do, but you take no active part. Your lawyer makes the argument and the judges ask questions of counsel.

Can I appeal all the way to the Supreme Court of Canada?

Only with leave, which must be sought within 60 days of the Court of Appeal's judgment and is granted in a very small proportion of cases, generally where the issue is of national importance.

Is it worth appealing?

That is the real question and it deserves a candid answer rather than an optimistic one. It depends on whether an identifiable error exists, what is at stake, the cost of proceeding, and the costs risk of losing. We will tell you plainly if we do not think an appeal should be brought.

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