CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
10. Appeal 10.1 Levels of Appeal or Review to a Litigation Most common law jurisdictions in Canada have a superior court and appellate court. The appel- late court is a statutory court but has wide juris- diction 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 administrative 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. The rules of procedure also differ as to the pro- cedure and test for granting leave. In some juris- dictions in Canada leave applications are part of a written process, 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 In order to commence an appeal, the appealing party must file and serve the required documents within the prescribed time for that jurisdiction in Canada. The prescribed time for filing and ser- vice 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 typi- cally 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 decisions of lower courts when an error of law or fact is alleged to have occurred. Questions 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 overriding 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-hear- ing of the original case, although an appellate court may hear new evidence and arguments but exercise that discretion rarely and in limited cir- cumstances. 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 conditions 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 prescribed by the rules of procedure or stat- ute. 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 mat- ter back to the lower court for redetermination
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