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Guidebook for Appellants (Civil & Family Matters)

 

2.1 How do you start an appeal?

In Saskatchewan, you do not have a guaranteed right of appeal. There are three situations:

  1. your case is of a type where there is no right of appeal at all;
  2. your case is one where you have to ask a judge of the Court of Appeal for permission to appeal the case (called “leave to appeal”); or
  3. you have an automatic right of appeal.

You need to think about these questions first to know which documents to prepare. Leave to appeal and automatic rights of appeal are discussed in Section 1.2.

How do you prepare if you need leave to appeal?

Do you need leave to appeal?

If you do not have an automatic right to appeal, you must make an application to the court to obtain leave (permission) to appeal your case. A discussion of whether you need leave to appeal or not can be found in Section 1.2.

How to apply for leave to appeal

Follow these steps:

  1. Prepare a Notice of Motion to Obtain Leave to Appeal in Form 4a. You must also prepare a draft notice of appeal in Form 1a, a draft order in Form 4b and, if you wish, a memorandum specifying the grounds for seeking leave. 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. Unless the statute that applies to the decision that you want leave to appeal says otherwise, an application for leave to appeal must be made within 15 days after the date of the judgment or order you want to appeal.
  3. Serve a copy of the documents listed in number 1 above on the other party or parties to the proposed appeal within 15 days after the date of the judgment or order you want to appeal and 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 within 15 days after the date of the judgment or order you want to appeal and 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 (unless the statute that applies to the decision that you want leave to appeal says otherwise). The other party or parties may appear at the hearing and argue that you should not be granted leave to appeal.

The judge will normally consider these factors when deciding whether to grant your application for leave to appeal:

  1. Does your appeal have sufficient merit to warrant the attention of the Court of Appeal? Your appeal may not have sufficient merit if it is frivolous, vexatious or destined to fail, or if it will unduly delay or add to the cost of the proceedings.
  2. Is your appeal of sufficient importance to warrant the attention of the Court of Appeal? For example, your appeal may be of importance to the state of the law or the administration of justice or raise new or controversial or unsettled issues of practice or points of law.

If you are not granted leave to appeal, the appeal process in the Court of Appeal is over. There is no appeal from a decision that grants or denies leave to appeal (s. 20(3) of The Court of Appeal Act, 2000).

2.2 What do you prepare if you have an automatic right to appeal?

Notice of appeal

A notice of appeal is a document that you prepare to advise the court and the other party that you intend to appeal your case. You can find details about notices of appeal in Parts III and IV of The Court of Appeal Rules (Civil).

Follow these steps:

  1. Prepare a Notice of Appeal in Form 1a.
  2. Serve the notice of appeal on the other party or parties to the appeal. Unless the statute that applies to the decision that you want to appeal says otherwise, a notice of appeal must be served within 30 days after the date of the judgment or order you are appealing.
  3. File the notice of appeal and proof that you have served it on the other party or parties, at the Court of Appeal’s registry office within ten days after you serve it on the other party or parties. 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 are appealing and you will have to pay a filing fee of $125.

2.3 After obtaining leave to appeal

If you are granted leave to appeal

If your application for leave to appeal is successful, you will have to serve a Notice of Appeal in Form 1a on the other party or parties to the appeal within ten days after the date of the order granting you leave to appeal. You will then have to file the notice of appeal and proof that you have served it on the other party or parties, at the Court of Appeal’s registry office within ten days after you serve it on the other party or parties. 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 are appealing (if you have not already done so) and you will have to pay a filing fee of $125.

2.4 Have the lower court file sent to the Court’s registry office

You must have the lower court or tribunal transmit (send) its file to the court’s registry office. You can do this by writing to the lower court or tribunal and asking for the file to be transmitted (sent). There may be a fee charged by the lower court or tribunal for this.

2.5 Obtain and file a transcript, if necessary

A transcript is a written record of a court or tribunal hearing. Rules 19, 20 and 21 of The Court of Appeal Rules (Civil) provide details about transcripts of evidence.

The first thing that you will have to do is figure out whether there is any transcript available from the court or tribunal hearing that your appeal relates to. There is usually only a transcript where witnesses testified in the proceedings. For most appeals from decisions in Court of Queen’s Bench Chambers, a transcript will not be available. You can find this out for sure by asking the court or tribunal you are appealing from.

If there is no transcript available, your appeal may be an expedited appeal. Expedited appeals are described in Rule 43 and special rules apply. If your appeal is an expedited appeal, you should proceed directly to Section 2.6.

If there is a transcript available, you must try to reach an agreement with the other party or parties about which parts of the transcript are required for the appeal. Certain parts of the transcript are always required – they are listed in Rule 20. If you reach an agreement with the other party or parties about which parts of the transcript are required for the appeal, you must have those parts of the transcript prepared. If you cannot reach an agreement within 30 days after the last party was served with the notice of appeal, you will have to arrange to have the complete transcript prepared.

To arrange to have part or all of the transcript prepared, you will have to contact Transcript Services or another commercial court reporting service to order the transcript and make arrangements to pay for it (preparation of a transcript can cost thousands of dollars). You must do this within 14 days of the expiry of the 30 days you are given to try to reach an agreement on the transcript. The transcript will have to be prepared in the format for transcripts approved by the court. Once the transcript is completed, you must file an electronic copy of it in the court’s registry office or have Transcript Services or the commercial court reporting service do so on your behalf.

You can find contact information for Transcript Services here. You can find contact information for commercial court reporting services in the yellow pages of the telephone book under Court & Convention Reporters. It is a good idea to start by telephoning the court reporting service you choose to get an estimate of the cost for preparation of the transcript. The court reporting service can also tell you at this time what type of deposit you will have to pay and what process you must follow to obtain the transcript.

2.6 Agreement as to contents of appeal book

Once an electronic copy of the transcript is filed in the court’s registry office, you must try to reach an agreement with the other party or parties about what you will include in your appeal book and how long you will have to complete your appeal book. You do this by serving the other party or parties with a list of what you think should be in the appeal book and the date by which you intend to complete your appeal book – you need to send this list within ten days after the electronic copy of the transcript is filed. You should look at Rule 23 for help in preparing this list.

The other party or parties must either agree with your list or send you back a revised list within ten days after they receive your list.

If you cannot agree on a list of contents and a completion date within 30 days after you serve the list on the other party or parties, you must apply to the registrar or to a judge to have the list of contents of the appeal book or completion date set (contact the registry office at 306-787-5382 or caregistrar@sasklawcourts.ca to find out how to do this).

If your appeal is an expedited appeal, you do not need to reach an agreement about the contents of the appeal book but can put together your appeal book on your own.

2.7 Put together, serve and file your appeal book

If there is a transcript, you will now have either agreed to the contents of the appeal book and its completion date or the registrar or a judge will have set these requirements in response to an application from you.

If your appeal is an expedited appeal and you do not need to reach an agreement about the contents of the appeal book, you must prepare, serve and file your appeal book within 30 days after you filed your notice of appeal.

Rule 23 lists the contents required in your appeal book such as an index, the pleadings from the lower court or tribunal, the judgment or order of the lower court or tribunal, the reasons for the judgment or order, your notice of appeal, the exhibits filed in the lower court or tribunal (whether through witnesses or attached to affidavits) and the transcript, if there is one. The pages of your appeal book must be numbered consecutively in the specific way described in Rule 23.

You cannot include any fresh evidence (new evidence) that was not before the lower court or tribunal in your appeal book.

Rule 24 tells you what your appeal book should look like. The cover must be blue. Both sides of the page may be used. If there are more than 200 sheets of paper in the appeal book (400 pages of material where you are using both sides of the page), you will have to break it into volumes.

Once your appeal book is prepared, you must serve it on the other party or parties to the appeal and file three copies of it (one for each judge who will hear your appeal), with proof that you have served it on the other party or parties, at the Court of Appeal’s registry office. At this time, you will also have to pay a filing fee of $100.

2.8 Write, serve and file your written argument

At the same time as you serve and file your appeal book, you must serve and file a written argument.

What is a factum?

A party who is represented by a lawyer must prepare, serve and file a formal written argument called a factum. Rules 27 through 31 describe what a factum must contain and look like in great detail, including the substance required, page length, colour, font size, spacing, margins, etc.

What is a written argument?

If you are not represented by a lawyer, you do not have to file a formal factum. Instead, at the same time as you serve your appeal book, you must serve a written argument which is no longer than 15 pages. Your written argument should explain what your appeal is all about. Although you are not bound by the strict rules which apply to a factum, it may be useful to include the following parts in your written argument, which are also required in a factum:

  1. an introduction summarizing the context for the appeal.
  2. a concise summary of the facts.
  3. a concise argument on the points of law or fact raised by the appeal and explaining the errors you say were made.
  4. a statement of the precise order that you want the court to make, including on costs.

When you file three copies of your appeal book, you must also file three copies of your written argument (at least one of which has an original signature on it) with proof that you have served it on the other party or parties.

Respondent’s factum or written argument

The other party must serve and file a factum (if they have a lawyer) or written argument within 30 days after receiving your appeal book unless your appeal is an expedited appeal in which case the time period for serving and filing a respondent factum or written argument is shortened to 15 days.

If you are the person responding to an appeal (the respondent), you should read the Guidebook for Respondents.

2.9 Scheduling the appeal for hearing

Once the registrar has received all of the parties’ factums or written arguments, he or she will schedule your appeal for hearing. Hearing dates are usually about six to eight weeks after the last factum or written argument is filed. The registrar will not generally consult the parties before setting a hearing date but, if you know of an upcoming date or dates when you are not available, you can provide the registrar with this information before a hearing date is set.

 

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Deciding to Appeal

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Applications & Hearings