1.4 Deciding to appeal

Appeals are expensive

Before making the decision to appeal your case, talk to a lawyer. He or she will explain your chances of winning or losing the appeal. There are many ways to get pro bono (free) advice or help with your case.

Appeals are costly and time consuming. Before deciding to appeal your case, think about the money you have already spent on your case, and the additional money you will need to spend on an appeal. You will have to pay registry fees for filing your documents and, if appealing a trial that involved live witnesses, fees for getting a transcript prepared. (You do not need to file a transcript for appeals from a “chambers” judgment; “chambers” includes applications and summary hearings where the evidence is given in writing (by affidavit), not by live witness testimony.) Transcript costs can add up to many thousands of dollars, even if you have been granted an order that no filing fees are payable. If you lose the appeal, you may have to pay the costs of the other party, and that can also add up to be thousands of dollars. In addition to the monetary cost, you will have to spend a great deal of time learning about the appeal process and preparing your appeal documents. You may find it stressful to be involved in another legal case.

An appeal is not a new trial

Appeals are very different from trials or applications.  They are a complex mix of research, writing and oral advocacy skills. An appeal is not a new trial. For an appeal to be successful, you must show that the decision-maker (e.g., a judge or tribunal) made a factual or legal error that affected the outcome of your case. You will have to do an in-depth study of the law to be able to demonstrate the errors that were made by that decision-maker.  You will need to do your own legal research and fully understand how the law was interpreted and what mistakes were made. You must follow the procedures of the Court of Appeal and meet strict deadlines or risk having your appeal dismissed.

Think about settling your case

Consider settling your case. Settlement allows you to reach an agreement with the other party instead of having the court impose its decision on you. The Court of Appeal has a program to facilitate settlements. The purpose of a Judicial Settlement Conference is to assist parties resolve appeals at an early stage, to save the expense to the parties, and to conclude the matter in a timely way. Details of a Judicial Settlement Conference are set out in the court’s practice directive.

Consider what the court will review at the hearing

When reviewing a case, the Court of Appeal looks at whether the decision-maker made a mistake in understanding the facts of the case or interpreting the law. The mistake must be obvious and fail to consider relevant evidence. Furthermore, that mistake must have had such a significant effect on the outcome of the case that it led to the incorrect decision being made. Because the appeal court does not hear evidence from witnesses, it is very difficult for the appellant to convince the appeal judges that the previous decision-maker reached the wrong conclusion about the facts of the case.