How Do I Appeal a Final Supreme Court Decision?
A final decision of the Supreme Court is made by a judge following trial or by the agreement of the parties without a trial. Orders made by the agreement of the parties are called consent orders.
A judge's final decision is appealed to the Court of Appeal. Because consent orders are made with everyone's agreement, they are almost impossible to appeal. Nevertheless, if an appeal can be made, it will be made to the Court of Appeal, just like a judge's final order.
You should think twice before you decide that you want to appeal a decision, as appeals can be surprisingly expensive. They're usually not as expensive as trials are, but the cost is still substantial. As well, it isn't always necessary to appeal a decision. Orders, even final orders, which deal with children, child support and spousal support can often be varied following the decision. Of course to vary an order, there must have been significant change in circumstances since the original decision was made.
The person bringing an appeal is called the appellant. The other party is called the respondent because that party is responding to the appeal. The trial court, the Supreme Court, is called the lower court or the court below, and the judge who heard the trial is called the trial judge.
Appeals to the Court of Appeal are governed by two things, the Court of Appeal Act and the Court of Appeal Rules. You should be familiar with both the act and the Rules because both contain guidelines and deadlines for the conduct of an appeal. Reading the Rules is not enough!
- 1 Making your appeal
- 2 Reasons for appealing a decision
- 3 Deadlines and procedures
Making your appeal
To appeal a decision, you must file a Notice of Appeal, in Form 7 of the Court of Appeal forms, in the registry of the Court of Appeal and serve it on the other side. The Notice of Appeal is a set form that you must fill out. In it you will have to say:
- when the order was made,
- which judge made the order,
- that you are making an appeal from a trial decision,
- whether the appeal is from a decision involving the Divorce Act and/or the Family Law Act,
- whether the appeal is from a decision involving the care of child and/or support,
- what order you want the Court of Appeal to make, and
- how long the trial took.
Once you've filled out your Notice of Appeal, you must file it in the registry of the Court of Appeal. They will charge you a fee for this, and you'll notice that all of the fees charged by the Court of Appeal are higher than those of the Supreme Court. The registry will stamp your Notice of Appeal with the seal of the court, a date stamp, and the file number of your action. You must then serve the Notice of Appeal on the other side.
Be aware that you have 30 days from the day after the decision was made to file your Notice of Appeal. The 30 days starts running from the date the decision is made (when the judge ordered you or the other party to do or not do something), not when you receive reasons for that decision. Once the 30 days have run out you will not be able to make your appeal unless you make a special application to the court for an extension of time. In general, the Court of Appeal is very strict and will demand that you obey the deadlines and rules exactly.
Reasons for appealing a decision
When a judge makes a decision following a hearing, the judge does three things. First, the judge makes a decision about the evidence and what the facts of the case are; this is called making a finding of fact. Second, the judge decides what the law applicable to the case is. Third, the judge applies the law to the facts. These last two steps are called findings of law.
You cannot appeal a decision simply because you don't like it. You must have a proper legal reason for bringing the appeal.
In most cases, you will not be able to appeal a decision because of a mistake in the judge's findings of fact, called an error of fact. As the appeal court does not hear the evidence all over again, unless the trial judge made an enormous error in deciding the facts of the case, the facts that you will rely on at your appeal are the facts as the trial judge found them to be.
Most often, appeals are based on errors in the judge's conclusions about the applicable law or how the judge applied the law to the facts, called an error of law. In appeals like these, the argument is based on a claim that the judge didn't apply the correct legal test or failed to properly apply the correct legal test.
Since appeals normally deal with legal issues rather than factual issues, they can be quite complex and involve a lot of technical arguments. If you are appealing a judge's decision, you should seriously consider hiring a lawyer.
Deadlines and procedures
Notice of Appeal
You have 30 days from the day after the order was made (not the date the order is formally written up and entered in the court registry, but the date the order is issued by the judge) to file your Notice of Appeal and serve it on the other side. It is a good idea at this point to find out when your appeal can be heard. At the court registry's direction, you will have to arrange a date for the hearing and ensure that the respondent is available on that date.
Notice of Appearance
After the respondent has been served with your Notice of Appeal, they will have 10 days to file a Notice of Appearance and serve it on you, acknowledging your appeal. At this point, the respondent may choose to serve a Notice of Cross Appeal against you. This is the respondent's own separate appeal from the trial decision.
Preparing the Appeal Book and transcripts
This is where things start to get expensive. Within 60 days of filing your Notice of Appeal, you must obtain a transcript of the testimony in the court appealed from, file the transcript with the court, and serve a copy on the respondent.
The transcript you must obtain is a transcript of all the oral evidence given at trial. You will have to contact a court reporting company (they're in the Yellow Pages) and make arrangements for them to transcribe the tapes that were made of the court proceedings.
Also within 60 days after bringing an appeal, you must prepare an Appeal Record in Form 9 of the Court of Appeal forms, file it with the court, and serve a copy on the respondent.
Within 30 days after filing the Appeal Record, you must prepare an Appeal Book in Form 12, file it with the court, and serve a copy on the respondent. The Appeal Book contains:
- the pleadings that were filed in the original court proceeding (the Notice of Family Claim, the Response to Family Claim, and the Counterclaim) plus all of the interim orders that may have been made in that proceeding,
- the documentary exhibits that were entered at the trial, and
- copies of the order you are appealing from, together with the trial judge's reasons for judgment.
You must prove to the registrar that you have taken whatever steps are necessary to obtain these materials and prepare your Appeal Book. When preparing your Appeal Book, you must pay close attention to the rules and the form provided in the Court of Appeal Rules. There are a couple of companies that will prepare your Appeal Book for you; they are listed in the Yellow Pages.
You will need a total of six copies of each of these documents — the transcript, the Appeal Record, and the Appeal Book — since the court gets four, you'll need one, and the respondent gets one as well.
Since transcripts can often run to several hundred pages, as can Appeal Books, the cost of this step can be quite high.
Settling the Appeal Book and transcripts
After you've got your Appeal Book together and received the transcripts, you must deliver a copy to the respondent for their approval. If the respondent does not approve, you will have to arrange a hearing before the court registrar to settle the content of the Appeal Book or transcript. To apply to settle the content, you must file an Appointment in Form 29 and serve one filed copy on the respondent at least five days before the date of the hearing.
Filing your factum
You have 30 days from the time you filed your Appeal Record to file your factum. A factum, which is to be prepared in Form 10 of the Court of Appeal forms, is your written argument as to why the appeal court should make the order you want.
Factums contain five parts:
- Statement of facts: A statement of the facts of the appeal, as the trial judge found them to be.
- Errors in judgment: A statement as to how you think the trial judge erred in law.
- Argument: Your formal argument, about the law, how the judge applied the law to the facts, and how the judge should have applied the law.
- Nature of order sought: A statement of the order you'd like the Court of Appeal to make.
- List of authorities: A list of the case law you rely on in your argument.
Again, factums are extremely formal, and there are all sorts of rules you must follow in preparing your factum, among which are the following:
- there is a limit on how many pages long your factum can be,
- the cover of your factum must be in a buff or beige colour (the respondent's must be green),
- all pages in your factum except for the index have to be printed on the back side of the page (so that when your factum is open, the text appears on the left page and the right page is blank),
- each line of your factum must be numbered, and
- each page must be numbered.
Like I said, factums are extremely formal.
Make a total of six copies of your factum and file them in court. The court will keep four copies, you will keep one, and you must serve the sixth on the respondent.
The respondent's factum
The respondent has 30 days from their receipt of your factum to file and serve you with their own factum. The respondent's factum is their argument against your position, and will also contain any additional arguments the respondent wants to make in support of their cross appeal.
Filing the certificate of readiness
When an appeal is ready for hearing, you must file a certificate of readiness in Form 14 of the Court of Appeal forms. An appeal is ready for hearing:
- when the Appeal Record and your factum and Appeal Book are filed, or
- if an order has been made dispensing with the need for your factum, when your Appeal Book is filed.
Your certificate is a statement that the appeal is ready to be heard and provides a time estimate of how long the hearing will take.
The day of your hearing is at hand. At this point, you must prepare a book of authorities. This is a binder containing all of the case law and statutes that you are relying on in the argument you've set out in your factum. You should arrange the cases in the order that you set them out in the list of authorities in your factum. Make five copies. One copy is for you, another is for the respondent, and the court will get the remaining three. You will give the court their copies on the day of the hearing of your appeal.
|The above was last reviewed for legal accuracy by Mary Mouat QC and Samantha Rapoport, June 29, 2017.|
|JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.|