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Guidebook for Appellants (Civil & Family Matters)

 

3.1 Making chambers applications

You may decide it is necessary to make certain applications to court before your appeal comes up for hearing. Common types of applications are dealt with in Section 3.2 of this guidebook.

These applications are made in chambers, usually before a single judge. In all chambers applications, evidence is given by affidavit. Applications can be scheduled for any date on which the court sits in chambers. The court sits in chambers in Regina on the second and fourth Wednesday of each month and in Saskatoon six times per year. You can find upcoming chambers dates by calling the registry office at 306-787-5382 or by looking here.

How to make a chambers application

Part XIV of The Court of Appeal Rules (Civil) tells you how to bring an application in chambers. You must:

  1. Prepare a notice of motion and draft order in the appropriate forms. If there are no specific forms for the application that you want to make, you will have to modify other Court of Appeal forms to meet your purpose. 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. If you intend to rely on facts at the hearing of the application, prepare or obtain an affidavit to set out those facts.
  3. Serve a copy of the notice of motion, draft order, affidavit and any other document that you intend to rely upon, such as a memorandum or written argument, on the other party or parties to the 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 3 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 have to pay a filing fee of $25.

It is a good idea to check with the other party or parties before inserting a chambers date in your notice of motion to ensure that they are available at that time.

How to reply to a chambers application

You have an opportunity to reply to another party’s application. If you intend to rely on facts to reply to the application, you must prepare or obtain an affidavit setting out those facts. If you intend to make an argument in reply to the application, you may wish to put your argument in writing. In either case, you must:

  1. serve a copy of your affidavit or argument on the other party or parties to the appeal at least one day before the chambers date.
  2. file a copy of your affidavit or argument with proof that you have served them at the Court of Appeal’s registry office at least one day before the chambers date.

What orders can a chambers judge make?

If you bring an application before a single judge in chambers, make sure that the judge has the ability to do what you are asking. In the Court of Appeal, some things must be decided by the court (a panel of three judges) and some things can be decided by a single judge. Section 20 of The Court of Appeal Act, 2000 tells you what a chambers judge can do. Generally speaking, a judge in chambers can make an order that is incidental to the appeal and does not involve a decision of the appeal on the merits.

What orders cannot be made by a chambers judge?

Any order described as being one that must be made by “the court” cannot be made by a chambers judge alone. So, for example, a chambers judge cannot decide an intervenor application (Rule 17) or an application to adduce fresh evidence (Rule 59). In addition, a chambers judge cannot quash an appeal (Rule 46.1) or dismiss an appeal for want of prosecution (Rule 46).

How to prepare for the chambers hearing

Get organized

With very rare exceptions, chambers hearings are open to the public. It is a good idea to watch a chambers hearing before you conduct your own; it will give you a better understanding of court procedure, and how you should best conduct your application. Because the court does not have chambers every day, you should contact the court’s registry office at 306-787-5281 or caregistrar@sasklawcourts.ca to find out when would be a good day to watch a chambers hearing.

The most important thing to remember about getting ready for a court hearing is that you need to be organized. It is a good idea to make notes about how you want to present the details of your application.

You may also want to talk with a lawyer about how to present and argue your application at the hearing. There are sometimes ways to get pro bono (free) advice or help with your case.

 

What happens in chambers?

On the date of the chambers hearing, you can appear either by telephone or in person. In some situations you may also be able to appear by video conference. If you intend to appear by telephone or video conference, you must contact the registry office at 306- 787-5382 or caregistrar@sasklawcourts.ca prior to the chambers date to confirm that.

On the chambers date, the chambers judge will probably be hearing more than one application so your application will be put on a list and you will have to wait for your turn. There will be a clerk in chambers, sitting at the front of the room between you and the judge’s seat. You should come a bit early so that you can introduce yourself to the clerk and find out where your application is on the list.

After everybody has arrived and introduced themselves to the clerk and when it is time for chambers to start, the clerk will leave the chambers room and will come back in with the judge. You should stand up when the clerk and judge enter the room. The judge will call each application in its turn.

When it is time for your application, you should come up to the counsel table at the front of the public seating area in the chambers room. Usually the judge will want to hear from the person making the application first and will then hear from the person responding to the application. When you are not speaking to the judge, you can sit down but you should stand up when you are speaking to the judge or when the judge is speaking to you.

The judge will have read the documents that you have served and filed on your application so you do not need to read or repeat them. You should try to summarize your argument and answer any questions the judge asks you. If you don’t understand a question from the judge, it is okay to ask the judge to ask the question in a different way or to clarify the question.

After the judge finishes hearing the application, he or she may give a decision immediately. This is called an oral decision or a decision from the bench. Or, the judge might “reserve” the decision which means that he or she will provide a written decision at a later date. The Court of Appeal registry office will contact you when the written decision is ready and you can pick it up. Or, the written decision may be emailed or mailed to you when it is released.

 

Etiquette in Chambers

You must conduct yourself in a way that is respectful of the dignity of the parties who are conducting their application. The courtroom is a formal setting and your conduct should be polite and respectful to the judge, the other parties, their lawyers and court staff. You must not disrupt or interfere with an application that is being heard.

Note also:

  • dress in appropriate clothing (no hats).
  • address the judges respectfully using “my Lord,” “my Lady,” “Justice,” “Judge,” “Sir,” or “Madam.”
  • you cannot take photos or videos.
  • you cannot record the proceedings in the courtroom.
  • turn your telephone off.

 

3.2 Common applications

 

Application for leave to appeal

Applications for leave to appeal are discussed in Section 2.1.

Application for an extension of time

Applications for an extension of time are discussed in Section 1.6.

Application to impose/lift a stay of execution

Bringing an appeal may not automatically stay (stop) enforcement of the order 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 an automatic stay, the other side may choose to make an application to lift the stay in chambers.

How to make an application to lift a stay of execution

Follow these steps:

  1. Prepare a Notice of Motion to Lift Stay of Execution in Form 5a with an affidavit that supports your motion (setting out the facts that support your position that the stay should be lifted). You must also prepare a draft order in Form 5b. It is also a good idea to prepare a memorandum specifying the basis for seeking a lift of the stay. 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. Serve a copy of the documents listed in number 1 above on the other party or parties to the appeal at least three days before the chambers date inserted in your notice of motion.
  3. 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 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 the automatic stay should not be lifted.

As discussed above, a judge in chambers can make an order that is incidental to the appeal and does not involve a decision of the appeal on the merits. If the order to lift a stay has the effect of deciding the appeal on its merits, this will be a factor that the judge will consider when deciding whether to lift the stay.

How to make an application to impose a stay of execution

If there is no automatic stay of execution, you may want to apply to have a stay of execution imposed until your appeal is heard and dealt with. Follow these steps:

  1. Prepare a Notice of Motion to Impose Stay of Execution in Form 5a with an affidavit that supports your motion (setting out the facts that support your position that a stay should be imposed). You will have to modify Form 5a (including the title as noted above) to show that it relates to an application to impose a stay of execution rather than to an application to lift a stay of execution. You must also prepare a draft order in Form 5b and, if you wish, a memorandum specifying the basis for seeking the imposition of a stay. 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 306-787-5281 or by looking here.
  2. Serve a copy of the documents listed in number 1 above on the other party or parties to the appeal at least three days before the chambers date inserted in your notice of motion.
  3. 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 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 a stay should not be imposed.

As discussed above, a judge in chambers can make an order that is incidental to the appeal and does not involve a decision of the appeal on the merits. If the order to impose a stay has the effect of deciding the appeal on its merits, this will be a factor that the judge will consider when deciding whether to impose the stay.

Application to move the appeal along (application for perfection)

You will see throughout this guidebook that there are rules about which documents need to to be served and filed and what timelines need to be followed by all parties to an appeal. Once all documents have been served and filed on an appeal, the appeal is called “perfected” and is ready to be scheduled for hearing. If another party to the appeal is not complying with the rules and you want the appeal to be perfected so that it can be scheduled for hearing, you could bring an application for perfection.

Follow these steps: 

  1. Prepare a Notice of Motion to Perfect Appeal in Form 6a with an affidavit that supports your motion (explaining what timelines have not been met and what you have done to try to move the appeal forward). Form 6a is set up for use by a respondent so, if you are the appellant, you will have to modify Form 6a to show that. You must also prepare a draft order in Form 6b and, if you wish, a memorandum specifying the basis for the application. 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. Serve a copy of the documents listed in number 1 above on the other party or parties to the appeal at least three days before the chambers date inserted in your notice of motion.
  3. 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 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 to oppose your application.

On an application for perfection, if the party applying has complied with the rules and the other party has not, the chambers judge will likely make an order setting out specific dates by which specific documents must be served and filed. The judge may also order that if the specific documents are not served and filed by the specific dates set, the applicant may apply to a panel of the court to have the appeal dismissed.

Read How to reply to a chambers application.


3.3 Abandoning your appeal

If you have filed a notice of appeal but decide you do not want to go ahead with it, you have to file a notice of abandonment in Form 8. Fill in the form and send it to the registry office.

Except in rare situations, you cannot re-open your appeal once it is abandoned.

3.4 How to prepare for the appeal hearing

Get organized

With very rare exceptions, Court of Appeal hearings are open to the public. It is a good idea to watch an appeal hearing before you conduct your own; it will give you a better understanding of court procedure, and how you should best conduct your appeal. Because the court does not hear appeals every day, you should contact the court’s registry office at 306-787-5382 or caregistrar@sasklawcourts.ca to find out when would be a good day to watch an appeal hearing.

The most important thing to remember about getting ready for a court hearing is that you need to be organized. It is a good idea to make notes about how you want to present the details about your case including, for example, the facts that you believe the decision-maker misunderstood, the law that you are relying on, the transcript paragraphs you will be referring to, and so on.

You may also want to talk with a lawyer about how to present and argue your appeal at the hearing. There are sometimes ways to get pro bono (free) advice or help with your case.

3.5 What happens at the hearing

At the hearing

On the hearing date, the court may be hearing more than one appeal. There will be a clerk in court, wearing a black robe and sitting at the front of the room between you and the bench where the judges sit. You should come a bit early so that you can introduce yourself to the clerk and find out if there is more than one appeal scheduled for hearing that day.

After everybody has arrived and introduced themselves to the clerk and when it is time for court to start, the clerk will leave the courtroom and will come back in with three judges. You should stand up when the clerk and judges enter the room.

When it is time to argue your appeal, you should come up to the counsel table at the front of the public seating area in the courtroom. As the appellant, you will sit to the left of the podium or lectern on the counsel table. Usually the judges will want to hear from the appellant first and will then hear from the respondent. When you are not speaking to the judges, you can sit down; but, you should stand up when you are speaking to the judges or when a judge is speaking to you.

The judges will have read the documents that have been served and filed on the appeal  so you do not need to read or repeat them in court. You should try to summarize your argument and answer any questions a judge asks you. If you don’t understand a question from a judge, it is okay to ask the judge to ask the question in a different way or to clarify the question.

  • As the appellant, you will make your presentation to the judges first. You should present a summary of how you believe the previous decision-maker made a mistake in either the interpretation of the law or the facts presented below. You should not attempt to simply re-argue the case that you made in the court or tribunal below. You should focus on what you say were the key errors made by the judge or tribunal.
  • Your presentation should normally follow what you have set out in your written argument. In other words, your written argument is your “presentation guide” and it is helpful to follow the important points that you have highlighted throughout your written argument. Doing so will keep you on track during your presentation and remind you of the points that you plan to cover.
  • Once your presentation is finished, the respondent makes his or her presentation. The respondent’s presentation will focus on proving that the previous decision-maker made the correct decision and that the grounds of appeal advanced by you are without merit.
  • You have an opportunity to reply to address issues raised by the respondent that you did not address during your initial presentation. If you reply, you cannot repeat anything that you have already said. This is not a time to repeat or emphasize your position on the appeal; it is a chance to address new issues raised by the respondent.

 

Courtroom etiquette

You must conduct yourself in a way that is respectful of the dignity of the parties who are conducting their appeal. The courtroom is a formal setting and your conduct should be polite and respectful to the judges, the other parties, their lawyers and court staff. You must not disrupt or interfere with an appeal that is being heard.

Note also:

  • dress in appropriate clothing (no hats).
  • address the judges respectfully using “my Lord,” “my Lady,” “Justice,” “Judge,” “Sir,” or “Madam.”
  • you cannot take photos or videos.
  • you cannot record the proceedings in the courtroom.
  • turn your telephone off.

3.6 Introducing Fresh Evidence (New Evidence)

In general, you cannot introduce fresh evidence (new evidence) on an appeal. You must rely on the evidence that you or the other party or parties submitted in the previous proceedings. However, you may introduce new or fresh evidence with leave (permission) from the panel of the court hearing the appeal. Rule 59 provides details about how to bring an application to court to decide this issue.

These are the general principles the court will consider on your application to admit fresh evidence:

  1. the evidence will generally not be admitted if you could have introduced it at trial;
  2. the evidence must be relevant in the sense that it relates to a decisive or potentially decisive issue in the case;
  3. the evidence must be credible in the sense that it is reasonably capable of belief; and
  4. if believed, the evidence must be such that it could reasonably, when taken with the other evidence introduced, be expected to have affected the result.

 

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Prepare Your Documents

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After the Hearing