Jul 31, 2023
Pursuing a civil appeal: The top five errors lawyers make
After a decision on a motion, application or action has been rendered, the losing party will almost always want to consider an appeal to a higher court. The temptation is strong to demand a reconsideration of the order as a matter of course.
However, launching an appeal without a proper assessment of its merits is fraught with danger. A frivolous appeal can attract further cost consequences. It can deal a further and decisive blow to the appellant. This is particularly so where a party pursues the wrong appellate route or fails to challenge the underlying order on valid grounds.
Below is a list of common errors made by lawyers who may not have significant experience with appeals.
1. Failing to determine if leave to appeal is required
In Ontario, sections 6 and 19 of the Courts of Justice Act, R.S.O. 1990, c.C.43, in combination with Rules 61 and 62 of the Rules of Civil Procedure, usually determine the proper appeal routes for civil appeals.
That being said, there may very well be another statute which governs the appeal and determines, for example, if leave of the court to which the appeal is sought is required.
Broadly speaking, interlocutory orders of the Ontario Superior Court, i.e., those that do not finally dispose of the underlying proceeding, are appealed to the Ontario Divisional Court, but only with leave of that court. The purpose is to discourage frivolous appeals of matters that do not finally resolve the underlying dispute. The "leave" requirement prevents parties from further delaying the progress of an underlying action or application by appealing an interlocutory order.
By contrast, final orders of the Superior Court, i.e., those that finally determine a proceeding, are typically appealable "as of right" (leave is not required), to either the Ontario Divisional Court or the Court of Appeal. Whether such an appeal must first proceed to the Divisional Court or the Court of Appeal is usually determined by the amount of money at issue in the underlying ruling.
Appealing an order to the wrong court or without first seeking leave of the Appeal Court, if required, may have fatal consequences. It can render the appeal out of time and force the appellant to bring a motion to extend the time to appeal.
2. Failing to have the underlying order issued and entered
A civil appeal lies from the underlying order, not the judge's reasons for decision: Singh v. Heft, 2022 ONCA 135 at para. 17. As such, before an appellate court can hear an appeal, the underlying order must be "issued and entered" by the lower court under Rule 59. This may require that the order be issued and entered by the Registrar or the judge who made the order itself. Without the order, the appellant is unable to finalize or "perfect" the appeal.
Lower courts may need significant time to review the language of the order and counsel may need time to negotiate that language itself. Failing to build in ample time to have the order issued and entered could result in the appellant not perfecting the appeal on time.
3. Failing to consider if a stay of the order is required
An appeal of an order may not necessarily prevent that order from taking effect. It is never wise to assume that the lower court or tribunal order being appealed will be "stayed" automatically. In many cases, a motion is required to stay the order pending the resolution of the appeal.
In Ontario, stays pending appeal are usually (but not exclusively) governed by Rule 63 of the Rules of Civil Procedure. Whether an order is automatically stayed depends on a range of factors, such as whether leave to appeal the order is required and whether the order is for monetary or nonmonetary relief.
The governing statute in a matter may also provide whether a stay pending an appeal is automatic or not.
4. Failing to determine the standard of review
Appellate courts may or may not defer to a lower court decision. At issue is which standard of review the court is to apply, i.e., one that shows significant deference to the underlying court and one that does not.
Broadly speaking, though not exclusively, civil appeals attract two standards of review: the deferential posture of "palpable and overriding error" or the non-deferential approach of "correctness": Housen v. Nikolaisen, 2002 sec 33 and Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 sec 65.
Findings of fact attract deference and will not be reversed absent a "palpable and overriding error." Questions of law are properly within the sphere of the appellate court and will only be reversed if incorrect. Questions of mixed fact and law lie along a spectrum and if the question does not raise an "extricable question of law," the deferential "palpable and overriding error" standard of review applies.
That being said, there are a number of exceptions and variations to the Housen standard.
Appeal counsel should wade in the waters of the standard of review carefully. A failure to identify the proper standard of review could lead to confusion on appeal.
5. Failing to write a cogent and persuasive factum
Of necessity, most appeals engage a question of law. At the appellate level, arguments will most certainly turn on the application of legal principles to the facts of the case and sometimes the validity of those legal principles themselves.
Unlike lower courts, appeal courts very much determine the law. As such, as many appeal judges will attest, the most important aspect of an appeal is not the oral argument, but the written factum which is submitted to the court months in advance of the hearing.
Counsel who do not provide the appeal court with a thorough and accurate statement of law in the factum risk having the appeal decided in the minds of the panel before the hearing takes place. An appeal factum very much carries the weight on an appeal.
Beware the unversed appellate lawyer
As set out above, lawyers who have argued a matter at a lower court may lack the experience or knowledge regarding how to pursue an appeal properly and effectively. The potential for error is high, particularly where counsel may have no experience with the Ontario Divisional Court or the Court of Appeal.
The errors identified above are some of the more common "pitfalls" that can send an appeal off course, or worse, result in lawyer negligence. Canvassing your appeal with more experienced counsel is not only wise, but may be your duty.
This article was originally published by Law360 Canada, part of LexisNexis Canada Inc.