Jun 10, 2021

Appellate Litigation and Judicial Review: A Litigator’s Most Common Mistakes

By Marco P. Falco

The prospect of embarking on an appeal or application for judicial review from a Tribunal proceeding or a motion, application or trial can be daunting for the unversed Ontario lawyer.  

Civil appeals and judicial review applications are very much their own beast.  

They involve a level of knowledge and skill outside the ordinary experience of the average litigator.

Lawyers should be wary of taking on appeals or judicial reviews where they do not do so regularly. The perils are many - the consequences fatal.

Below is a list of the top five mistakes made by the novice appellate lawyer. 

They may apply to lawyers for the appellant / applicant or the respondent:

1.       Failing to take out the underlying Order

In order to perfect a civil appeal from a Superior Court proceeding to an appellate Court, an issued and entered Order of the Superior Court is required.  

The appellant will not be able to perfect the appeal without it.  

In the current climate, the Superior Court may very well require additional time to have the Order issued and entered;  this consideration must be factored into the perfection timeline.

2.       Appealing in the Wrong Court

There are a myriad of avenues through which an appeal or application for judicial review is ultimately heard by the Divisional Court or the Ontario Court of Appeal.

The proper venue for an appeal is largely determined by statute.

It can depend on a range of factors, including whether the lower Court order or Tribunal decision was interlocutory or final and whether a statute other than the Courts of Justice Act, R.S.O. 1990, c.C.43 governs the appeal. 

Proceeding in the wrong Court can be fatal to the appeal itself.

3.       Not Seeking Leave to Appeal

Certain civil appeals to the Divisional Court or the Court of Appeal require leave of the Court before the appeal may be pursued. 

This typically occurs where the appellate Court is being asked to hear an appeal of an order or decision that has already been appealed before.  

Leave may also be required where there are good policy reasons for discouraging parties from appealing the order itself.   

In either case, if leave to appeal is required and not pursued, the appeal will not be considered.

4.       Failing to Adhere to Appeal or Judicial Review Deadlines

The deadlines for pursuing and perfecting an appeal or application for judicial review as set out in the Rules of Civil Procedure are usually not negotiable, particularly without the consent of opposing counsel. 

A failure by an appellant or applicant to start or perfect an appeal on time can have dire consequences.  

Absent a very legitimate reason for the delay or absent the consent of opposing counsel, the appeal could be rejected from the outset or dismissed entirely.

5.       Failing to Conduct Further Legal Research and Recrafting the Written Argument

A factum submitted in support of an appeal or an application for judicial review should never amount to a regurgitation of lower Court or tribunal arguments. 

As a piece of rhetoric and oral advocacy, a factum must be clear, persuasive, and cogent. 

Since the factum is the most important document submitted to the Divisional Court or Court of Appeal, it must be drafted with care and expertise. 

Novices should tread carefully in the art of written appellate advocacy.

Appellate Courts do not, as a general rule, re-hear cases – they look for legal error by the tribunal or Court below. 

Accordingly, an appeal or application for judicial review should very much constitute a “fresh start”, where the issues presented to the appellate Court are narrow, few, and the product of considerable legal research and reconsideration.   

How We Can Help You

We provide a range of services to lawyers who are embarking on a civil appeal or application for judicial review. 

These services include:

  • A preliminary assessment of the merits of the appeal, including opinions and legal research;
  • Drafting Notices of Application for Judicial Review or Notices of Appeal;
  • Drafting materials for the perfection of motions for leave to appeal;
  • Drafting of facta for appeals, motions for leave to appeal, and applications for judicial review;
  • The perfection of Appeal Books and Compendia, Exhibit Books, Books of Authorities;
  • Written and oral advocacy for the appeal or judicial review application itself.

*Marco P. Falco is an appellate litigator at Torkin Manes LLP who focuses on civil appeals and applications for judicial review.