Appeals lawyer, appeal lawyer, civil appeal lawyer, small claims court appeals to Divisional Court, appeals to Court of Appeal

Ravinder Sawhney, ESQ.
B.A., LL.B., LL.M. (Cornell)
Barrister and Solicitor.
Attorney-at-law, New York
  "The life of the law has not been logic; it has been experience" Oliver Wendell Holmes
Practice areas

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An appeal is a second-tier process in law that generally enables a higher legal authority to assess whether a substantial wrong has been done at the first trial level. There is a burden on the appellant to show that the re-examination of the case is justified. The grounds of appeal therefore need to be analyzed carefully in deciding whether to appeal a case. These grounds fall under two basic categories recognized by law, explained in detail below: errors of fact and errors of law. 

The first thing to remember is that an appeal arises due to grounds laid down in a statute and its governing Rules. For example, the Family Law Act and Rules would be the starting point to see if a family law court decision can be appealed.

The Rules of Civil Procedure and the Courts of Justice Act have general and specific provisions regarding timings and jurisdictional provisions for certain appeals, including small claims court appeals in Ontario, which are heard in the Divisional Court in its various branches spread out throughout the province.  

Once a court or tribunal makes a decision, the first thing to note is that a notice of appeal has to be filed within a short period. This notice informs the other side that a decision is being appealed. Giving the notice of appeal to the other side is called serving the other side with the notice. This period of time is the first deadline  to note whenever a decision is being considered for appeal.

After serving the other side, the notice of appeal must also be filed in the court or tribunal in a timely manner. This is also a deadline and must be observed. Therefore, the question to ask immediately when a decision is being considered for appeal is how much time is allowed to serve and to file the notice of appeal.

The filing also requires proof that the notice was served on the other side. The method of serving, whether by mail, fax or any other, has to be stated, and such method must be an approved method in law. The Rules must be followed to ensure that the method of service is acceptable.

After the notice of appeal has been served upon the other side and filed in the court or the tribunal, generally the appeal has to be completed in writing. This is called perfecting the appeal. The documents forming the record of the court or tribunal where the trial took place, need to be served on the other side, and filed in the court or tribunal of appeal.

Perfection of the appeal is also subject to prescribed timelines. The record of the court or tribunal appealed from must be served and filed in the same manner as the notice of appeal within a specified time.

It is also necessary to file a memorandum of law (also called a factum) that links the legal arguments made by the appeal lawyer to this record. This is the most read document by the court or tribunal and is the work of your appeal lawyer. This memorandum is the real chance for success if it persuades the appeal judge to your grounds of appeal. This factum is served and filed and is part of the process of perfecting the appeal.

Given these deadlines, it is important to note that the need to consult a lawyer if an appeal is being considered is immediate, upon the decision made below. Time begins to tick immediately.

A record made by the court reporter in the trial or hearing at the first level, may exist. Usually a taped version will exist at a court trial. From this tape, the court reporter can prepare a transcribed copy, to serve as the written record of the evidence at the trial. Everything said during the trial would be contained in this transcript which is the proof of the oral evidence. This transcript is prepared only on order, as when an appellant wishes to have it prepared to present to the appeal court.

In some cases, the grounds of appeal are derived entirely without the transcript. These points are errors in law that can be deduced from the reasons of the decision itself without the transcript. Such an appeal needs sophisticated legal analysis and is harder since it bypasses the entire oral evidence.

If the appeal is trying generally to show errors of fact, as opposed to errors of law, then a transcript would be important in most appeals of that type.
An appeal is required to show an error of law, or an error of fact that meets the test for appeal, or a mixed error of law and fact.  An error of law is an error that relates to a point of law rather than a point of fact. An error of law addresses statements of the law and focuses on showing how the law was misapplied.

An error of both fact and law is a mixed error of law and fact where both law and fact are intertwined.

Pure errors of fact are less recognized as a ground of appeal. This is based on the reasoning that the trial court, not the appeal court, is the court in the position to judge facts, since an appeal does not recreate a trial with all the witnesses and the hearing of the evidence. Where recognized, such errors of fact alone, must be "overriding and palpable" in the words of the Supreme Court of Canada, meaning, they should be very obvious.

Errors usually are significant in impact to be recognized. Minor slights are not sufficient grounds of appeal.

Errors of fact, often called errors with respect to fact findings, made at trial, are, as stated above, harder to challenge than errors of law. For an appeal court to say that an error of law was made, it does not have to disturb the facts determined by the trial court. The appeal court only deals with the applicable law in such instances.

Where an appeal court accepts that an error of fact was made by the trial judge, the circumstance is exceptional. This arises where, for example, the trial court’s factual inferences arising from certain established facts were unreasonable, or if the court made significant findings contrary to the evidence.

Errors of law, on the other hand, relate to mistakes in the interpretation of law. A varied interpretation of law does not amount to an error of law. The error must be meaningful in order to be recognized as an error of law. Thus, the error of law must be usually shown to have a significant impact on some right.

The lawyer has to show the error of law by comparing standard interpretation of the law in question to the interpretation at trial that should be worthy of correction by the appeal court. In showing an error of law, the appeal lawyer generally does not question the facts established by the trial court.  A question of law relates to the correct legal test involved. 

The Supreme Court of Canada has stated that a mixed fact and law question involves the applicable legal standard to the relevant facts. A mixed fact and law question generally attracts the standard of an error of fact and thus the error must be shown to be "overriding and palpable".  Where, from a mixed fact and law question, it is possible to "extricate" a question of law, the error would be considered an error of law which would then be subject to the standard of correctness. If no legal principle can be identified in the mixed fact and law question, then the appeal lawyer will need to show  an error of fact for the appeal to succeed. 

Recent case law in 2014 and 2017 has categorized contractual decisions to be subject to the stricter test of "overriding and palpable" errors, which are recognized errors of fact, since contractual decisions are now presumed to be based on facts unique to the dispute rather than giving rise to questions of law.  The Supreme Court of Canada has stated that construing a contract as a whole would need the legal principle to be "extricated" and identfied clearly before the contractual appeal could attract a question of law standard as the ground of appeal.  The appeal court will thus need to view closely how, for example, omitting consideration of a contractual term in the trial court's decision, impacted the application of law such that a question of law can be identified, in construing the contract as a whole. An appeal of a decision made under a contract is thus an appeal of a mixed question of fact and law, and needs a two part  alternate analysis: either showing that factual errors were signficant enough to merit overturning the first decision; or, that the contract as a whole can be shown to raise a question of law that can clearly be identified and then corrected due to the error in the decision below.  

As a matter of practice, both errors of fact and law are attempted to be shown in many cases, though a plain error of law can easily be the sole worthwhile focus without challenging the factual findings of the decision being appealed in suitable cases.  A greater focus on the legal error tends to lessen the focus on extensive evidence and increases the focus on the evidence relevant to the legal error.   This makes referencing exhibits of evidentiary documents less needed than referencing authoritative legal passages of judgments that are expository of the legal principle claimed to be offended in its application by the trial court. 

The Supreme Court of Canada has recently had occasion to see how mixed questions of fact and law arise in contracts that have been arbitrated as opposed to being litigated in the courts. Arbitration decisions are much harder to appeal since they are subject to arbitration statutes that do not provide automatic rights of appeal.  Arbitration as a process is parallel to the court system in that it also involves disputes of contractual interpretation, but  procedures and their fairness apply differently due to the private route of dispute resolution involved in arbitration, unlike the open and public courts with a wider range of rights at all levels, including appeals. A leave to appeal process can be involved in an appeal from an arbitration decision, as was recently the case in a Supreme Court of Canada decision.  The Court reviewed the leave to appeal principles, which often also arise under a variety of other statutes, such as where interlocutory orders which are not final orders, are appealed.  The Court stated that arbitration decisions are subject to the judicial review standard of reasonableness.  This is different from the test of correctness applied to a question of law. The arbitrators' expertise grants them considerable deference in the courts such that their decisions are not easily overturned.  

There are two notable exceptions where the test of reasonableness is not applied to the arbitration decision being challenged, and also to tribunal decisions whose judicial review is sought in a higher court of appeal. First, where a constitutional question arises, and second, where a question which is of central importance to the legal system as a whole and outside of the adjudicator's expertise, arises.  Both of these issues  remain subject to the correctness standard, and will not be required to be shown as reasonable. Overall, commerical arbitration decisions and expert tribunal decisions enjoy a high level of acceptance in principle within the courts and are thus harder to succeed in appeals or judicial review.

The requirement that constitutional questions and general questions of law bearing broad legal principles of general interest to the legal system as a whole, should be correctly answered by the court when they arise, and should not be controlled by tribunals of specific expertise, remains an important principle of the Canadian legal system. This is because the Supreme Court of Canada expects that the courts will be called upon to ensure that such questions are correctly answered and  applied throughout the judicial system.  The appeal lawyer or the lawyer arguing a change in the result of a tribunal's decision by judicial review, will find it challenging to characterize examples of procedural questions that tribunals face in their specific roles, as ones that can be broadened to be of such general interest to the entire legal system, and not to be considered within the expertise of tribunal decision-makers.  The context in which such questions often arise, within the tribunal whose decision is being reviewed, often localizes the scope of such questions within the confines of the tribunal's expertise.  As a matter of practicality, tribunal decisions are mostly challenged under the judicial review standard by arguing they were unreasonable rather than arguing that they impinged on a general broad legal principle of value to the legal system as a whole.  

It should be borne in mind that the appeal route and the judicial review route, both generally provided in statutes of different variety, undergo different analysis designed to change the result of a decision of a court or a tribunal respectively.   The appeal route follows the analysis of an error of law, an error of fact, or a mixed error of law and fact.  This generally applies to court decisions where a trial has been held.  A tribunal's judicial review follows the analysis of whether the decision challenged was reasonable.  In comparative terms, though an appeal and judicial review are different statutory creatures,  an error of law is generally viewed as a less strict test than showing a tribunal decision was unreasonable.   An appeal and a judicial review are not generally applied as alternative routes, within a single decision, except where it may be unclear which route could apply.  Arbitration decision appeals are an example where the Supreme Court of
 Canada had recent occasion to observe this dual occurrence. An appeal lawyer will typically first try to identify an error of law in a decision where a statute provides for an appeal route.  And the appeal lawyer would then alternately try to show how an error of fact, though subject to a stricter test, has arisen, which would be an inquiry in which the focus would be on fact finding errors and their inferences made in the decision.  That would end the process of appealing a decision.  The process of seeking judicial review of an administrative decision of a tribunal, on the other hand, is primarily the process of showing that the decision was unreasonable.  

Arbitration decisions, after the recent Supreme Court of Canada decisions (Sattva:
 2014, and Teal Cedar Products Ltd: 2017), are rare decisions where the appeal route and the judicial review route could concurrently arise.  As a general rule, court decisions are appealed and tribunal decisions are judicially reviewed.  The terminology of an appeal or judicial reveiw instantly triggers different analysis, as stated above.  The route follows from the words of the statute prescribing the appeal or judicial review. 

When a statute prescribes an appeal from a tribunal's decision, the question arises as to what test should be requested by the appeal lawyer to be applied: the error of fact and/or error of law, or the test of reasonableness applied to a tribunal decision.  The question concerns what are called "standards of review."  Since the decision is of a tribunal, the standard of review is that of reasonableness.  So the appeal court will need to decide whether the tribunal's decision was reasonable, rather than ask whether an error of law or an error of fact was committed.  

It is customary for an appeal court to address the question specifically to the appeal lawyers, as to what standard should be applied to the decision that is being challanged.  The court will often look for opposing appeal lawyers to agree to the standard of review to be applied, particularly if the presentations of the appeal through documentary perfection suggest a common approach.  Since arguments can be made alternatively as a matter of law, it is common not to have a clear answer regarding the standard of evidence, and to argue both positions alternatively.  This is of greater practical signfiicance in appeals of trial court decisions where the question is whether the claimed error is of law or of fact, leading to different analysis. Nevertheless, it is also of importance to an appeal court to identify through the views of lawyers whether the test of reasonableness clearly applies in the case of a tribunal's decision.  The threshold question of the standard of review necessitates understanding the process thoroughly since the appeal process is one of argument throughout, and is a question and answer session between the panel of judges and lawyers, of all technicalities and references to the evidence and the law presented. 

Where an automatic right to appeal under a statute does not exist, and it is necessary to seek leave to appeal, this means that the threshold must be met before an appeal will be heard.  This threshold imposes the challenge of demonstrating on a preliminary basis how the question of law arises.  This assessment of the court asked to grant leave does not bind the court of appeal panel that may hear the actual appeal once the leave to appeal is granted.  The leave to appeal application does not consider the full merits of the appeal but generally needs to show "arguable merit" or a "reasonable prospect of success." 
The appeal lawyer must explain to the appeal court or the appeal level of the tribunal, what this new evidence is and how significant it could have been to the trial result. The appeal lawyer will need to explain why the appellant did not obtain this evidence beforehand and present it at the trial. In other words, why did the appellant not exercise due diligence at the time of the trial or before it?

The appeal lawyer can try to admit such evidence in exceptional circumstances before the appeal court, if the test for admitting it is met. The appeal court can consider such evidence if it believes it will have a significant impact on the merits of the case. This is rare but possible.
A large part of the success of an appeal lawyer is based on written material filed at the appeal. The appeal lawyer has to state in writing what legal error has been made by the trial court. This is art as much as science.

The art is in molding facts and legal interpretation to show how the law was misapplied. The science is in the full application of law that needs to be well understood in its relevance to the facts. This scientific inquiry is what largely determines the lawyer's fee involved in an appeal. The length as well as the complexity of documents and of the issues involved varies, playing a large role in determining the fee.

Arguments are devised around cases taking similar and opposing routes, by analogy with similar results, and distinguishing contrasting results, where such cases can be traced. Creativity often lies in finding novel grounds of appeal that reveal errors of law not identified before. This is the process of evaluating precedent.

Issues should have been raised generally in the trial court or tribunal in order to become proper grounds of appeal. A ground of appeal should not take the opposing side by surprise. In other words, the law restricts appeal arguments only to those issues that were part of the trial process. The appellate court or tribunal is concerned about unfairness to a party that has already been successful.

Beyond this, the appeal lawyer’s challenge is to reveal injustice on its face. The argument stating the gravity of injustice resulting from the decision should always be simple to understand even in a complicated case.

The appeal court or tribunal is also concerned that its decision meets the full requirements of the law. Not giving sufficient legal details of fact and law in writing can cause the court to decide against an appellant.

Because the arguments on appeal generally need comparison with other decided cases as far as possible, an appeal lawyer’s memorandum of law should reflect a high quality of research and writing skills before relying on oratorical persuasion. The merits of the appeal should be evident in the factum, laying the foundation of the oral presentation.

There is, however, a particularly important aspect of oral argument. Face time with the decision-maker is the direct opportunity to answer the appeal judge’s questions pertaining to all aspects of the appeal. This final opportunity must be maximized so that the grounds of appeal are well understood by the appeal court.
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