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.