CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
The province or territory may also have rules regarding the enforcement of judgments under the Convention between Canada and the United Kingdom of Great Britain and Northern Ireland providing for the Recip- rocal Recognition and Enforcement of Judgments in Civil and Commercial Matters. Canada is not a signatory to the Hague Convention on the Recognition and Enforcement of Foreign Judg- ments in Civil or Commercial Matters. If the judgment was obtained in a foreign jurisdiction that is not a recip- rocating jurisdiction nor party to an enforcement treaty, then the party must commence new proceedings on the foreign judgment to obtain a local judgment. Most common law jurisdictions in Canada have a superior court and appellate court. The appellate court is a statutory court but has wide jurisdiction to hear appeals of most matters from the superior courts, although leave may be required for certain matters. The superior courts and appellate courts may hear judicial reviews or appeals of a particular adminis- trative board or tribunal, depending on the statutory regime. 10.2 Rules Concerning Appeals of Judgments The rules of procedure differ depending on what types of decisions are appealable as of right and which require leave of the appellate court. Most commercial judgments will be appealable as of right. 10. Appeal 10.1 Levels of Appeal or Review to a Litigation The rules of procedure also differ as to the procedure and test for granting leave. In some jurisdictions in Canada, leave applications are part of a written pro- cess, while in other jurisdictions the parties may be required to appear in court for an oral argument. Leave applications are almost always heard by a single judge of the appellate court. 10.3 Procedure for Taking an Appeal To commence an appeal, the appealing party must file and serve the required documents within the pre-
scribed time for that jurisdiction in Canada. The pre- scribed time for filing and service may differ depending on the jurisdiction and the type of appeal. An appeal of a judgment may have different timeframes than an appeal of an administrative tribunal. The timeframes are typically short, such as 30 days. The triggering date for an appeal may vary, but it is usually the date of the decision. 10.4 Issues Considered by the Appeal Court at an Appeal Appellate courts review lower court decisions when an error of law or fact is alleged to have occurred. Ques- tions of law are reviewed on a standard of correctness, while questions of fact or questions of mixed fact and law are reviewed on a standard of palpable and over- riding error. Palpable and overriding error is a high threshold based on the principle that first-instance judges are best equipped to make factual findings. Appeals are on the record and are not a re-hearing of the original case, although an appellate court may hear new evidence and arguments (but exercise that discretion rarely and in limited circumstances). Leave of the court may be required. 10.5 Court-Imposed Conditions on Granting an Appeal In granting leave to appeal, the court may impose con- ditions on the parties such as the posting of security pending appeal. 10.6 Powers of the Appellate Court After an Appeal Hearing The powers of the appellate court on appeal are pre- scribed by the rules of procedure or statute. Generally, an appellate court may allow the appeal; dismiss the appeal; or make any order that the lower court ought to have made. In allowing the appeal, the court may substitute its determination of the issues or outcome for that of the lower court, or it may remit the matter back to the lower court for redetermination in accordance with its reasons. In making any order that the lower court ought to have made, the appellate court may impose any terms and conditions.
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