Judges, like all professionals, are not immune from making mistakes. In Ontario, a party challenging a trial judge’s decision may appeal on the grounds of legal errors, factual errors, or procedural issues. However, navigating the appeals process can be complex, as procedures and deadlines vary depending on the relevant statutes, the jurisdiction of the decision-maker, and the forum where the decision was made, whether in Small Claims Court, Superior Court, Divisional Court, or the Court of Appeal. With skilled and knowledgeable legal representation, a party can significantly improve its chances of achieving a favorable appeal.

What is an Appeal in Civil Proceedings?

The appeal process provides an opportunity for a higher court to review and potentially modify or overturn a judgment, decision, or order. Unlike a trial, the appeals court does not rehear evidence but instead examines the transcript of the original proceedings and considers the legal arguments presented by the parties. A single judge or a panel of judges may hear the appeal, depending on the nature of the claim and the appellate court. The court may allow the appeal in whole or in part or dismiss it entirely or partially. If an appeal is unsuccessful, the court can order the losing party to pay the legal costs of the successful party.

Types of Appeal

Depending on the facts and applicable statutes in a proceeding, an appeal can be either as of right or discretionary. In an appeal as of right, higher courts are automatically required to hear or consider the moving party’s appeal. In contrast, discretionary appeals require the moving party to obtain the court’s permission (or leave) before an appeal hearing can proceed.

Grounds of Appeal:

The following are some common grounds of appeal:

Errors of Law

A party may appeal a decision if they claim that the trial judge made a legal error, such as a misinterpretation or misapplication of the law.

Errors of Fact

A prospective appellant may appeal a decision if they claim the trial judge made a factual error in rendering their decision, such as insufficient evidence or inaccurate witness testimonies.

Procedural Errors

A party may appeal a decision if they claim that trial court made procedural errors, such as failure to abide by the procedural rules or the improper admission of evidence.

Fresh Evidence

In very limited circumstances, an appellate judge may permit the introduction of new evidence during an appeal. The party seeking to introduce this evidence must provide a clear explanation, detailing the nature of the new evidence, its potential impact on the case’s outcome, and whether it was available during the original trial. If the party had available evidence that was not presented at trial, they must also justify why it was not introduced earlier.

It is important to note that various other grounds of appeal are available including ineffective assistance of counsel, fettering discretion, inconsistent conclusions, among others.

When Not to Seek an Appeal

Appeals are a complex and costly process. Beyond the financial implications, we typically advise against pursuing an appeal for any of the following reasons:

1. There is a lack of meritorious grounds for appeal;
2. The appeal is based on a lack of substantial evidence;
3. The trial court indicated that the appellant lacked credibility;
4. The record is not adequate to show judicial error;
5. The error was harmless and not prejudicial;

How Appellate Courts Review an Appeal

In Housen v Nikolaisen, the Supreme Court of Canada established the standard of review for civil appeals. The appellate court reviews questions of law on a standard of correctness, meaning it does not defer to the original decision-maker and instead determines the correct outcome independently. It reviews factual questions on a standard of palpable and overriding error, intervening only if it identifies a clear error that affected the result. For discretionary decisions made by a judge, the appellate court will interfere only in limited circumstances—specifically, when the decision is so clearly wrong that it amounts to an injustice, or when relevant considerations were given no or insufficient weight.

In appeals concerning procedural errors, the appellate court assesses the required level of procedural fairness given the circumstances and determines whether it has been met.As the Supreme Court of Canada outlined in Baker v. Canada (Minister of Citizenship and Immigration), the court will consider various factors related to procedural fairness, including:

1. The process and nature of making the decision;
2. The nature of the statutory scheme and the terms of the statute;
3. The importance of the decision to the individual(s) affected;
4. The legitimate expectations of the person challenging the decision; and
5. The choices of procedure made by the original decision maker itself.

Takeaways

As experts in civil court appeals, we regularly advise individuals and entities on the costs, benefits, and likelihood of success when appealing a judge’s order.

Should you consider appealing a decision, you may contact us at any time regarding your rights and options. Please note that the appellate process is time-sensitive; therefore, it is crucial to seek legal representation promptly to minimize costs and maximize your chances of success.