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3.4 What happens at the hearing

At the hearing

Before the hearing, the division hearing your appeal will review the decision of the trial court (or tribunal), some of the evidence, and the factums.

The appeal is not a new trial of the issues. There are no witnesses or juries. You cannot introduce new evidence, except in rare cases.

  • As the appellant, you will make your presentation to the judges first.  You should present a summary of how you believe the previous decision-maker made a mistake in either the interpretation of the law or the facts presented below. You should not attempt to re-argue the case that you made in the court or tribunal below. You will have already outlined these points in your factum.
  • Your presentation follows what you have set out in your factum. In other words, your factum is your “presentation guide” and it is helpful to follow important points that you have highlighted throughout your factum. Doing so will keep you on track during your presentation and remind you of the points that you plan to cover. The justices will often want to know where they can find the points you are discussing, so you should be prepared to direct them to the most important parts of the filed materials. You should expect the justices to stop you from time to time to ask questions.
  • The respondent makes his or her presentation. The respondent’s presentation will focus on proving that the previous decision-maker made the correct decision and that the grounds of appeal advanced by the appellant are without merit.
  • You have an opportunity to reply to address issues raised by the respondent that were not addressed during your initial presentation. If you reply, you cannot repeat anything that you have already said. This is not a time to reiterate or emphasize your position on the appeal; it is a chance to address new issues raised by the respondent.

Courtroom etiquette

You must conduct yourself in a way that is respectful of the dignity of the parties who are conducting their appeal.  The courtroom is a formal setting and your conduct should be polite and respectful to the judges, the other parties, their counsel, and court staff.  You must not disrupt or interfere with an appeal that is being heard.

Note also:

  • Dress in business clothing.
  • Address the judges as “my Lord”, “my Lady”, or collectively “the court”.
  • You cannot take photographs or videos.
  • You cannot record the proceedings in the courtroom.
  • Do not talk on the telephone.
  • You may use an electronic device in the courtroom to transmit or receive text in a discreet manner that does not interfere with the proceedings.

An electronic device means any device capable of transmitting and/or recording data or audio, including smartphones, cellular phones, computers, laptops, tablets, notebooks, personal digital assistants, or other similar devices.

Legally reviewed: 2020/ Apr