TOP FIVE TIPS FOR SUCCESSFUL APPEALS OF ADVERSE TRIAL JUDGMENTS

1. BE ON TIME WITH FILING THE APPEAL

It might strike you as strange that it's more important to be on time with an appeal, than to have great grounds of appeal, but really that's how life works in general. The world's best employee who's always three hours late for work isn't going to last long in any job. 

Most appeal limitation periods are a maximum of 30 days from the date of judgment. Some are as short as 10 or 15 days. Most count all calendar days (including holidays and weekends), though some only count Monday to Friday working days. It all depends on the wording of the court rules that govern your case.

Some appeal rules require that you serve and file the appeal within the time limit, meaning serve the notice of appeal on the opposing party, and actually file that notice together with proof of service in the correct appeal court. Others require that you only file within the time limit, with service to come slightly later. 

If you are thinking: “oh, missing that limit by a few days can't be such a big deal, can it?” think again. You'll at least need to bring a motion before the appeal court to extend time for filing, and offer evidence of a very good reason why you were late. Quite frequently, you'll just be told you're too late.

Miss the deadline to file the appeal by a few years, and no one is likely going to care about how good your appeal grounds happen to be or even your reason for being late unless you're still locked up in jail. The principle of finality means that courts don't like it when cases where final decisions appear to have been taken get resurrected over and over again. 

2. APPEAL TO THE CORRECT COURT

People, lawyers included, frequently appeal to the wrong court. Why this happens is because appellate routes can get complicated. 

Criminal appeal routes aren't usually too complicated, but you may still need to choose between your provincial Superior Court and the Court of Appeal if you were convicted in provincial court. In some provinces, you have a choice in where to bring your appeal, however your grounds of appeal might be more restricted if you go directly to the Court of Appeal. The Supreme Court of Canada may also eventually be an option.

Civil appeal routes are a lot more complicated than criminal routes. First you need to determine if your matter is governed by federal or provincial law in assessing your civil appeal options. 

For appealing government decisions, you might need to go to one of a variety of specialized administrative tribunals. 

Federal civil matters might also need to go to the Tax Court, the Federal Court, or the Federal Court of Appeal. Don't get to thinking that you would logically always go to the Federal Court first, and then to the Federal Court of Appeal – sometimes you jump over the Federal Court, depending on which body you are appealing from. 

In Ontario for provincial administrative and small claims matters, one option could be going to the Divisional Court, but if you are appealing a small claims judgment you would go to a single judge panel of the Divisional Court who would hear your case in the location where your other Superior Court judges sit, whereas if you need a three judge panel of the Divisional Court such as when the appeal is from the Landlord and Tenant Board, then those hearings only happen in limited regional centres which is where you need to file the notice of appeal. As a further example of restricted geography for appeals, in bankruptcy matters in Ontario there are only four locations in the province that hold hearings. Thus you need to figure out not only the correct names of the court, but also where it sits so that you file your appeal documents in the correct registry office.

If you're wondering: “why so many different appeal courts?” the answer is similar to the age old question: “why so many different government departments with so many offices?” Courts are split up along both geography and subject matter expertise, just like government offices. 

3. FIND A TRUE APPEALABLE ERROR OF LAW, RATHER REHASHING THE TRIAL JUDGE'S FINDINGS OF FACT 

You can't just appeal because you lost at trial. You need a good reason for why an appeal court should overturn the trial judge's findings. And the fact that you don't like those findings isn't a good enough reason. 

Generally, you need to put your finger on an error of law, or mixed fact and law, that happened during the trial and that may have affected the end result. If you can show multiple errors, all the better. 

Usually no new evidence is heard on an appeal. An appeal isn't just a second kick at the trial can. Rather, an appeal is a fairly academic review of the trial process, to ensure that you received a fair trial, and that the trial judge didn't make any significant errors of law during the trial that may have affected the end trial result. 

4. GET THE SYMPATHY OF THE COURT BY EXPLAINING THE INJUSTICE

As much as lawyers love technical legal arguments, I've found they tend not to succeed on appeal by themselves. Rather, during an appeal you also have to get the sympathy of the appeal court by explaining the injustice you suffered at trial, and how the appeal court can advance the cause of justice by deciding the appeal in your favour. Try to make the appeal about more than just you, and generalize it to be about similar injustices that might also befall others. 

5. ORDER THE TRIAL TRANSCRIPTS ASAP

Appeals are almost always based on trial transcripts, regardless of whether those transcripts are of a 20 minute highway traffic speeding offence trial, or a 20 days child custody family law trial. You need to be able to afford to pay for the transcripts and order them in a timely way in order to perfect your appeal toward getting a hearing date. 

Count on at least $500 per day of trial for transcript costs. But a 20 minute hearing will be very inexpensive - the $500 isn't some kind of minimum charge. You usually don't have to order transcripts prior to filing your notice of appeal, but you should do so soon thereafter, and usually need to provide proof to the appeal court that you have ordered and paid for the transcripts. Most of the time advance payment will be necessary. And make sure you order the required number of copies according to the appeal rules - you can't just photocopy an official transcript for court use. 

You can successfully conduct an appeal yourself, but an experienced appeals lawyer can greatly increase your chances of success, and save you lots of hassle. Usually appeal fees are quoted on a flat block fee basis, rather than hourly, so at least you'll have some cost certainly over whether hiring a lawyer is both worth it and something you can afford. In determining your ability to conduct your own appeal, you should carefully consider the level of court you will be appealing from: the lower the level of court, the more likely a do-it-yourself appeal might work. 

Yes Virginia, You Can Appeal an Appeal: How to Get More than One Kick at the Judicial Appellate Can

Interior of Supreme Court of Canada.
Credit: Wikipedia.

There are some limited types of judicial decisions that can't be appealed. But for most cases, appeals are available as a fundamental injustice check value in a judicial system staffed by imperfect humans, doing the best they can, but inevitably prone to factual and legal errors. 

Regardless of the level of court you start at with your first appeal in Canada, there will almost always be a chance of at least one more kick at the appellate can to a higher appellate court. If you're lucky (or unlucky, depending on your perspective) there will be two or even three more appeal levels.

More than a few people believe what they perceive to be endless appeals to be a fundamental flaw of the justice system. Some even think any appeal is a ridiculous abuse of process.

As a lawyer doing appeals for two decades, I can assure you that the appeal process is finite. And arguably much more efficient than the trial process. 

Instead of wasting time with adjournment after adjournment in trial court, and waiting perhaps years to get trial court time, appeal rules set fixed dates by which each party must file documents, and then set a couple of hours in court for the argument of the appeal. Two or three levels of appeals can pass more quickly than the time it takes to conclude one complex trial. 

So the "should I appeal?" question you asked after a less than optimal trial result can likewise be asked after an unsuccessful appeal. Likely the importance of the result to you, the justice of the case, the availability of grounds of appeal, and your resources to support an appeal will drive your decision to appeal further, just as they drove your original decision to appeal.

Just as trial judges can make errors of law, so too can appeal judges. Sometimes, you might win at trial, lose on appeal (because the other side appeals your win), and then win on further appeal.

Never assume that there's no way to further appeal an adverse judgment. An appeals lawyer is best placed to advise you on whether a further appeal might be brought, and on your chances of success.

Also don't assume that the higher your appeal goes, the lesser your chances of success. I've seem some quite shocking reversals even in the Supreme Court of Canada, where a party has lost at trial, and lost at the initial appeal, but then won at the Supreme Court of Canada.

The success trick for any appeal beyond the first initial appeal level is to convince the higher appeals court to hear your appeal in the first place, as the court's "leave" to appeal might be required. Supreme Court of Canada cases almost always require leave, and leave is only granted to about ten percent of those who apply. So you will really need to sell the higher appeal court on the justice (or injustice) or your case, as well on the egregious errors of law in the court below. Plus, for the Supreme Court of Canada you'll usually have to demonstrate an issue of national importance.