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Court of Appeal Help Guide > Civil & Family Matters > Guidebook for Appellants

Guidebook for Appellants (Civil & Family Matters)

 

1.1 What is an appeal?

What is an appeal?

At the conclusion of a proceeding in a lower court, such as the Court of Queen’s Bench for Saskatchewan, or tribunal, such as the Automobile Injury Appeal Commission, the party who lost may want to have that decision reviewed by a higher court in the hope that it might be reversed or changed. In such cases, an “appeal” is made to the Court of Appeal, which is the highest court in Saskatchewan.

You must understand that an appeal is not a new trial or rehearing of your case.

What an appeal is not

An appeal is not:

  • a new trial;
  • a hearing with witnesses or a jury;
  • a chance to present fresh evidence or new witnesses to a new judge, except in exceptional circumstances; or
  • a way to avoid complying with the lower court’s or tribunal’s order.

The Court of Appeal will not hear an appeal of every case. In some situations, you must ask the permission of the court to appeal through a process called “leave to appeal.” Even if the Court of Appeal hears your appeal, it will not:

  • re-hear your case from start to finish;
  • change the decision just because it seems somewhat unfair; or
  • change the decision just because the court might have decided the matter differently. (The decision must be incorrect due to a factual or legal error.)

In summary, for an appeal to be successful, you must show that the decision-maker made a factual or legal error that affected the outcome of your case. An appeal is not a new trial or re-hearing of your case.

 

1.2 Do you have a right to appeal your case?

There is no right to appeal a lower court or tribunal decision to the Court of Appeal unless a statute gives you that right. You must read the applicable statute to understand whether you have a right to appeal a decision and, if so, how to appeal and the procedural timelines that you must follow. In some situations, there may be no right to appeal, with or without leave, to the Court of Appeal.

An example of a situation where a statute gives a right to appeal a decision is s. 194 of The Automobile Accident Insurance Act, which says:

Appeal to the Court of Appeal
194(1) The insurer or a claimant may appeal a decision of the Court of Queen’s Bench or appeal commission to the Court of Appeal on a question of law only.

(2) An appeal pursuant to this section must be made within 30 days after the date of the decision of the Court of Queen’s Bench or appeal commission or within any further time that a judge of the Court of Appeal may allow.

So, if you have a decision of the Court of Queen’s Bench for Saskatchewan or of the Automobile Injury Appeal Commission made under The Automobile Accident Insurance Act, then you have a right to appeal that decision to the Court of Appeal on a question of law within 30 days of the date of the decision.

An example of a situation where a statute requires leave to appeal is s. 45 of The Small Claims Act, 1997, which says:

Appeal to Court of Appeal
45 The judgment of the judge hearing the appeal is subject to appeal to the Court of Appeal on a question of law, with leave of a judge of that court.

So, if you have a decision of the Court of Queen’s Bench for Saskatchewan made under The Small Claims Act, 1997 (on an appeal from a decision of a Small Claims Court Judge), then you may only appeal that decision with leave.

Figuring out whether you have a right to appeal or whether you need leave (permission) to appeal can be very difficult – sometimes even for lawyers. If you cannot figure this out on your own, you will have to ask a lawyer for help. The court’s registry office staff cannot answer this question for you.

Decisions from the Court of Queen’s Bench

The Court of Appeal Act, 2000 (s. 7) creates a right to appeal most final decisions from the Court of Queen’s Bench for Saskatchewan to the Court of Appeal.

If you do not have an automatic right to appeal, you must make an application to obtain leave (permission) to appeal. For example, interlocutory decisions in the Court of Queen’s Bench cannot be appealed to the Court of Appeal without leave (permission). Section 2.1 on how to start an appeal discusses how you obtain leave to appeal.

Decisions from Small Claims Court or the Office of Residential Tenancies

You cannot appeal a small claims court decision of the Saskatchewan Provincial Court or a decision of the Office of Residential Tenancies directly to the Court of Appeal without appealing to the Court of Queen’s Bench first. In both cases, once a decision is made by the Court of Queen’s Bench on an appeal, a party who is not happy with that decision can appeal it to the Court of Appeal but only with leave (permission) to appeal. Section 2.1 on how to start an appeal discusses how you obtain leave to appeal.

Decisions from Saskatchewan administrative tribunals

Some decisions of Saskatchewan administrative tribunals may be appealed directly to the Court of Appeal. But, often those decisions must first be reviewed by the Court of Queen’s Bench, unless the statute that created the tribunal says otherwise (e.g., decisions from the Automobile Injury Appeal Commission). You must read the applicable statute to understand whether you have a right to appeal a decision and, if so, how to appeal and the procedural timelines that you must follow.

1.3  What happens to the order you are appealing?

Bringing an appeal may not automatically stay (stop) enforcement of the order or judgment made by the decision-maker below. You will have to look at the statute that applies to the decision you are appealing to see what it says about a stay. If the statute does not say anything about a stay, Rule 15 of The Court of Appeal Rules (Civil) will apply. Figuring out whether there is an automatic stay or not can be very difficult – sometimes even for lawyers. If you cannot figure this out on your own, you will have to ask a lawyer for help. The court’s registry office staff cannot answer this question for you.

If there is no automatic stay, you may choose to make an application to impose a stay in chambers to a judge of the Court of Appeal. On the other hand, if there is an automatic stay, the other side may choose to make an application to lift the stay in chambers to a judge of the Court of Appeal. You can find more information about how to make these applications in Section 3.2.

1.4 Deciding to appeal

Appeals are expensive

Before making the decision to appeal, talk to a lawyer. He or she will explain your chances of winning or losing the appeal. There are sometimes ways to get pro bono (free) advice or help with your case.

Appeals are costly and time-consuming. Before deciding to appeal, think about the money you have already spent on your case and the additional money you will need to spend on an appeal. Unless you successfully obtain a Fee Waiver Certificate, you will have to pay registry fees for filing your documents. There are also fees for getting a transcript prepared (if there is a transcript available).  These fees can add up to thousands of dollars. If you lose the appeal, you may have to pay the costs of the other party and that can also add up to be hundreds or, in some cases, thousands of dollars. In addition to the monetary cost, you will have to spend a great deal of time learning about the appeal process and preparing your appeal documents.

An appeal is not a new trial

Appeals are very different from trials or applications or administrative hearings. They involve a mix of research, writing and oral advocacy skills. An appeal is not a new trial. For an appeal to be successful, you must show the Court of Appeal that the lower level decision-maker (a judge or tribunal) made a factual or legal error that affected the outcome of your case. You will have to study the law to be able to demonstrate the errors that were made by that decision-maker. You will often need to do your own legal research to fully understand how the law was interpreted and what mistakes were made. You must follow the procedures of the Court of Appeal and meet deadlines or risk having your appeal dismissed.

Think about settling your case

Consider settling your case. Settlement allows you to reach an agreement with the other party instead of having the court impose its decision on you.

Consider what the court will review at the hearing

When reviewing a case, the Court of Appeal looks at whether the decision-maker made a mistake in understanding the facts or interpreting the law. The mistake must have had the effect on the outcome of the case that it led to the incorrect decision being made. Because the Court of Appeal does not hear evidence from witnesses, it can be very difficult for the person who is appealing (the appellant) to convince the appeal judges that the previous decision-maker reached the wrong conclusion about the facts of the case.

1.5  An appeal is expensive. What kind of help is there?

What if you cannot afford a lawyer?

The Court of Appeal cannot appoint a lawyer to represent you in a civil or family case. However, there are services that can assist you as a self-represented litigant with legal information or free or low-cost representation in the Court of Appeal.

What if you cannot afford to pay filing fees?

If you cannot afford to pay your fees for filing an appeal, you can apply for a fee waiver certificate under The Fee Waiver Act.

To obtain a fee waiver certificate, you will have to complete an application form and provide whatever supporting evidence is required by the court. Unless there are special circumstances, you will only be eligible for a fee waiver certificate if:

If you already have a fee waiver certificate from the lower court or tribunal in the case that you are appealing, you may not need to re-apply.

Even if you obtain a fee waiver certificate, you will still be responsible for some costs (like transcripts, costs of attendance at court, etc.). These costs can amount to hundreds or, in some cases thousands of dollars.

To obtain a fee waiver certificate application form or for more information about fee waiver certificates, please contact the registry office.

1.6 What if you have missed a deadline and are too late to appeal?

If you have missed the deadline for filing your notice of appeal

Unless the statute that applies to the judgment or order that you want to appeal says otherwise, you may apply for an extension of time if you have missed the deadline for filing your notice of appeal. Take the following steps:

  1. Prepare a Notice of Motion to Extend Time for Appeal in Form 3a with an affidavit that supports your motion (explaining why you missed the deadline). You will need to insert a chambers date into your notice of motion. You can find out when the court’s next chambers dates are by telephoning the registry office at 306-787-5382 or by looking here.
  2. Prepare a draft notice of appeal in Form 1a, a draft order in Form 3b and, if you wish, a memorandum explaining the basis for the proposed extension. 
  3. Serve a copy of the documents listed in numbers 1 and 2 above on the other party or parties to the proposed appeal at least three days before the chambers date inserted in your notice of motion.
  4. File a copy of the documents listed in number 1 above and proof that you have served the documents on the other party or parties, at the Court of Appeal’s registry office at least three days before the chambers date inserted in your notice of motion. At this time, you will also have to file a copy of the lower court’s  or tribunal’s formal judgment or order that you want to appeal and you will have to pay a filing fee of $25.

On the return date of the application (the chambers date inserted in your notice of motion), your application will be heard by a single judge in chambers. The other party or parties may appear at the hearing and argue that you should not be given an extension of time.

The judge will normally consider these factors when deciding whether to grant your application for an extension of time:

  1. Did you have a bona fide (genuine) intention to appeal before you missed the deadline?
  2. Have you acted with reasonable diligence in filing your Notice of Motion to Extend Time for Appeal?
  3. How long have you delayed?
  4. Is there a reasonable excuse for your delay?
  5. Does your appeal have merit?
  6. Will the other party or parties be prejudiced if you get an extension of time?

If you have missed the deadline for filing your application for leave to appeal

Unless the statute that applies to the decision that you want leave to appeal says otherwise, you may also apply for an extension of time if you have missed the deadline for filing your application for leave to appeal. Take the following steps:

  1. Prepare a Notice of Motion to Extend Time for Appeal in Form 3a with an affidavit that supports your motion (explaining why you missed the deadline). You will have to modify Form 3a to show that it relates to an application to extend the time to apply for leave to appeal rather than to an application to extend the time to appeal.  You will need to insert a chambers date into your notice of motion. You can find out when the court’s next chambers dates are by telephoning the registry office at 306-787-5382 or by looking here.
  2. Prepare a Notice of Motion to Obtain Leave to Appeal in Form 4a, a draft notice of appeal in Form 1a, a draft order in Form 3b, a draft order in Form 4b and, if you wish, a memorandum explaining the basis for the proposed extension. You will need to insert a chambers date into your notice of motion. You can find out when the court’s next chambers dates are by telephoning the registry office at 306-787-5382 or by looking here.
  3. Serve a copy of the documents listed in numbers 1 and 2 above on the other party or parties to the proposed appeal at least three days before the chambers date inserted in your notices of motion.
  4. File a copy of the documents listed in numbers 1 and 2 above and proof that you have served the documents on the other party or parties, at the Court of Appeal’s registry office at least three days before the chambers date inserted in your notices of motion. At this time, you will also have to file a copy of the lower court’s or tribunal’s formal judgment or order that you want to appeal and you will have to pay a filing fee of $50 ($25 for the application for an extension of time and $25 for the application for leave to appeal).

On the return date of the applications (the chambers date inserted in your notices of motion), your applications will be heard by a single judge in chambers. The other party or parties may appear at the hearing and argue that you should not be given an extension of time or that you should not be granted leave to appeal or both.

The judge will normally consider these factors when deciding whether to grant your application for an extension of time:

  1. Did you have a bona fide (genuine) intention to seek leave to appeal before you missed the deadline?
  2. Have you acted with reasonable diligence in filing your Notice of Motion to Extend Time for Appeal?
  3. How long have you delayed?
  4. Is there a reasonable excuse for your delay?
  5. Does your appeal have merit?
  6. Will the other party or parties be prejudiced if you get an extension of time?

For the factors that the judge will consider when deciding whether to grant your application for leave to appeal, please see How to apply for leave to appeal in Section 2.1.

 

 

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