Jul 8, 2021

Pitfalls of appeals and judicial reviews: What every litigator needs to know

By Marco P. Falco
The Lawyer’s Daily View original

The idea of embarking on a civil appeal or application for judicial review can be daunting for the unversed lawyer. 

Appeals and judicial review applications are very much their own creature. They involve a level of knowledge and skill ordinarily outside the experience of the average litigator. Lawyers should be cautious about 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 common errors made by litigators in the commencement or perfection of an appeal or application for judicial review: 

1. Failing to have the underlying order issued and entered

In order to perfect a civil appeal from a lower court proceeding to an appellate court, an issued and entered order of the lower court is required. This rule does not usually apply to decisions of tribunals, since tribunals typically do not execute orders, but only decisions. 

An appellant will not be able to perfect the appeal without the underlying court order(s), however. During the pandemic, the lower 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 to the wrong court

There are a myriad of avenues through which an appeal or application for judicial review is ultimately heard by the Ontario 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, apart from the Courts of Justice Act, R.S.O. 1990, c.C.43, governs the appeal. 

In certain cases, the underlying statute will expressly identify the period by which an appeal must be brought and to what court. A failure to appeal to the right court and on time can be fatal - the appeal could be dismissed or struck by the appellate court on a motion by the opposing party. And any subsequent appeal commenced in the proper venue may be out of time when all is said and done. 

3. Failing to obtain 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 and may be struck by the appellate court. 

4. Failing to meet commencement and perfection 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 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 lower court argument

The business of appellate courts is law. So it is incumbent on the appellate lawyer to ensure that the law presented to the court is up-to-date and noted up. Moreover, 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, which takes years of experience to refine and develop. 

Appellate courts do not, as a general rule, rehear cases - they look for legal error. 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. 

When to ask for help 

The lessons above are important - for those embarking on an appeal or application for judicial review for the first time, and even for those with some experience in the field, it may very well be necessary to understand one's limits as a litigator and retain expert appellate counsel to assist in the commencement and perfection of the appeal. 

This may involve retaining an appellate lawyer to assist with drafting the Notice of Appeal/ Notice of Application for Judicial Review, conducting legal research, perfecting the appeal, drafting the factum and even making oral argument. 

Such efforts may very well amount to a sound investment, particularly where appellate litigation is fraught with the potential for error. 

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