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Guidebook for Respondents (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 Saskatchewan Court of Queen’s Bench, 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.

An appeal is not a new trial or a rehearing of the 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, the appellant must ask the permission of the court to appeal through a process called “leave to appeal.” Even if the Court of Appeal hears the appeal, it will not:

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

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

1.2 Does the appellant have a right to appeal?

There is no right to appeal a lower court or tribunal decision to the Court of Appeal, unless a statute gives that right. An appellant must read the applicable statute to understand whether there is a right to appeal a decision and, if so, how to appeal and the procedural timelines that must be followed. 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 the appellant has 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 the appellant has 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 the appellant has 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 the appellant may only appeal that decision with leave.

Figuring out whether there is a right to appeal or whether leave (permission) to appeal is required can be very difficult – sometimes even for lawyers. If an appellant cannot figure this out on his or her own, he or she will have to ask a lawyer for help. The court’s registry office staff cannot answer this question.

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 Saskatchewan Court of Queen’s Bench to the Court of Appeal.

If an appellant does not have an automatic right to appeal, he or she must make an application to the court to obtain leave (permission) to appeal. For example, interlocutory decisions from the Court of Queen’s Bench cannot be appealed to the Court of Appeal without leave.

Decisions from Small Claims Court or the Office of Residential Tenancies

A party 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.

Decisions from Saskatchewan administrative tribunals

Some decisions from 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). An appellant must read the applicable statute to understand whether he or she has a right to appeal a decision and, if so, how to appeal and the procedural timelines that must be followed.

What the Court of Appeal 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 of the case or interpreting the law. The mistake must have had the effect on the outcome of the case that it led to an 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.

1.3  What happens to the order being appealed?

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 which applies to the decision being appealed 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, an appellant 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, you 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 2.2.

1.4 How do I respond to an appeal?

Two types of appeals

In Saskatchewan, there is not always a guaranteed right of appeal. There are three situations:

  1. the appellant has no right of appeal at all;
  2. the appellant must ask a judge of the Court of Appeal for permission to appeal the case (called “leave to appeal”); or
  3. the appellant has an automatic right of appeal.

If the appeal is one where leave to appeal is required, the appellant will serve you with 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 4b and possibly a memorandum specifying the grounds for seeking leave.

If the appeal is one where leave to appeal is not required (where there is an automatic right of appeal) then no such application is required and the appellant will serve you with a notice of appeal in Form 1a. The question of what right the appellant has to appeal is discussed in Section 1.2.

If the appellant missed the deadline for filing a notice of appeal or application for leave to appeal

The appellant may apply for an extension of time if he or she missed the deadline (usually 30 days) for filing a notice of appeal. The appellant will serve you with application documents at least three days before a hearing by a single judge in chambers (the chambers date will be in the Notice of Motion to Extend Time for Appeal).

If you intend to oppose the appellant’s application, you may respond by serving and filing your own affidavit or argument at least one day before the chambers date. Alternatively, you can simply appear on the chambers date and make an oral argument.

The application for an extension will be heard by a Court of Appeal judge in chambers. The appellant will present reasons why an extension should be granted. As the respondent, you will be able to present reasons why the extension should not be granted. After your presentation, the appellant may have an opportunity to reply to your presentation.

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

  1. Did the appellant have a bona fide (genuine) intention to appeal before missing the deadline?
  2. Did the appellant act with reasonable diligence in filing a Notice of Motion to Extend Time for Appeal?
  3. How long did the appellant delay?
  4. Is there a reasonable excuse for the appellant’s delay?
  5. Does the appeal have merit?
  6. Will you (the respondent) be prejudiced if the appellant gets an extension of time?

1.5 If the appellant applies for leave to appeal

If the appellant is applying for leave to appeal, he or she must serve you with 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 4b and possibly a memorandum specifying the grounds for seeking leave. Unless the statute that applies to the decision being appealed says otherwise, service of these documents on you must be made within 15 days after the date of the judgment or order the appellant wants to appeal and at least three days before the chambers date (the chambers date will be in the Notice of Motion to Obtain Leave to Appeal).

If you intend to oppose the appellant’s application for leave to appeal, you may respond by serving and filing your own argument at least one day before the chambers date. Alternatively, you can simply appear on the chambers date and make an oral argument.

The leave application will be heard by a Court of Appeal judge in chambers. The appellant will present reasons why leave should be granted. As the respondent, you will be able to present reasons why leave to appeal should not be granted. After your presentation, the appellant may have an opportunity to reply to your presentation.

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

  1. Does the appeal have sufficient merit to warrant the attention of the Court of Appeal? The 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 the appeal of sufficient importance to warrant the attention of the Court of Appeal? For example, the 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 the chambers judge grants the appellant leave to appeal, the appeal process continues. There is no appeal from a decision that grants or denies leave to appeal (s. 20(3) of The Court of Appeal Act, 2000).

If the appellant missed the deadline for filing the application for leave to appeal

The appellant may apply for an extension of time if he or she missed the deadline (usually 15 days) for making an application for leave to appeal. This application is usually made at the same time that the appellant is applying for leave to appeal.

The appellant will serve you with a Notice of Motion to Extend Time for Appeal in Form 3a with an affidavit that supports the motion. The appellant will have modified 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. The appellant will also serve you with 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 possibly a memorandum explaining the basis for the proposed extension. All of these documents will be served on you at least three days before the chambers date (the chambers date will be in the Notice of Motion to Extend Time for Appeal and the Notice of Motion to Obtain Leave to Appeal).

If you intend to oppose the appellant’s applications for an extension of time and for leave to appeal, you may respond by serving and filing your own affidavit or argument at least one day before the chambers date. Alternatively, you can simply appear on the chambers date and make an oral argument.

The applications will be heard by a Court of Appeal judge in chambers. The appellant will present reasons why an extension of time and leave should be granted. As the respondent, you will be able to present reasons why neither an extension of time nor leave to appeal should be granted. After your presentation, the appellant may have an opportunity to reply.

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

  1. Did the appellant have a bona fide (genuine) intention to seek leave to appeal before missing the deadline?
  2. Did the appellant act with reasonable diligence in filing a Notice of Motion to Extend Time for Appeal?
  3. How long did the appellant delay?
  4. Is there a reasonable excuse for the appellant’s delay?
  5. Does the appeal have merit?
  6. Will you (the respondent) be prejudiced if the appellant gets an extension of time?

1.6 The appellant serves a notice of appeal

If the appellant has an automatic right of appeal he or she will serve you with a notice of appeal in Form 1a. Unless the statute that applies to the decision under appeal says otherwise, a notice of appeal must be served within 30 days after the date of the judgment or order the appellant is appealing.

If the appellant did not have an automatic right of appeal but was given leave to appeal, he or she must serve you with a notice of appeal in Form 1a within 10 days after the date of the order granting leave to appeal.

1.7 A transcript may be prepared

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. There is usually only a transcript where witnesses testified in the proceedings so, for most appeals from decisions in Court of Queen’s Bench Chambers, a transcript will not be available.

If there is no transcript available, the appeal may be an expedited appeal. Expedited appeals are described in Rule 43 and special rules apply.

If there is a transcript available, the appellant must try to reach an agreement with you 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 appellant about which parts of the transcript are required for the appeal, the appellant must then have those parts of the transcript prepared. If the parties cannot reach an agreement within 30 days after the last party was served with the notice of appeal, the appellant will have to arrange to have the complete transcript prepared.

Once the transcript is completed, the appellant must file an electronic copy of it in the court’s registry office or have Transcript Services or the commercial court reporting service that prepared the transcript do so on the appellant’s behalf.

1.8 The appeal book

An agreement as to the contents of the appeal book

Once an electronic copy of the transcript is filed in the court’s registry office, the appellant must try to reach an agreement with you about what the appellant will include in the appeal book and how long the appellant will have to complete the appeal book. The appellant will do this by serving you (within ten days after the electronic copy of the transcript is filed) with a list of what the appellant thinks should be in the appeal book and the date by which the appellant intends to complete the appeal book. You should look at Rule 23 to see what should be on the appellant’s list.

You must either agree with the appellant’s list or send the appellant back a revised list by serving the appellant with a revised list within ten days after you received the appellant’s list. You should not be unreasonable or you may end up paying costs to the appellant.

If the parties cannot agree on a list of contents and a completion date within 30 days after the appellant serves you with his or her list, the appellant 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 the appeal is an expedited appeal, the appellant does not need your agreement about the contents of the appeal book.

The preparation and service of the appeal book

The appellant must serve you with the appeal book either by the day you agreed to or by the day the registrar or a judge ordered or, if the appeal is an expedited appeal, within 30 days after the appellant filed his or her notice of appeal.

Rule 23 lists the contents required in the 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, the 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 the appeal book must be numbered consecutively in the specific way described in Rule 23.

The appellant cannot include any fresh evidence that was not before the lower court or tribunal in the appeal book.

Rule 24 tells you what the 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), the appellant will have to break it into volumes.

1.9 The appellant’s factum or written argument

At the same time as the appellant serves you with the appeal book, he or she will serve you with a factum (if he or she is represented by a lawyer) or a written argument.

If the appellant is represented by a lawyer

If the appellant is represented by a lawyer, the lawyer will prepare 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.

1.10 Write, serve and file your written argument

You must serve and file a written argument within 30 days after receiving the appeal book and the appellant’s factum or written argument unless the appeal is an expedited appeal in which case your time period for serving and filing a written argument is shortened to 15 days.

What is a written argument?

If you are not represented by a lawyer, you do not have to file a formal factum. Instead, within 15 or 30 days after receiving the appeal book and the appellant’s factum or written argument, you must serve the appellant with a written argument, which is no longer than 15 pages. Your written argument is your response to the appeal. 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:

  1. an introduction summarizing the main reasons why the appeal should not succeed.
  2. a concise summary of your position on the facts stated in the appellant’s factum or written argument and a concise statement of any other facts that were before the court or tribunal below that you consider relevant.
  3. a concise argument on the points of law or fact raised by the appeal.
  4. a statement of the precise order that you want the court to make, including on costs.

You must 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.

1.11 Scheduling the appeal for hearing

Once the registrar has received all of the parties’ factums or written arguments, he or she will schedule the 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 contact the registrar with this information before a hearing date is set.

 

 

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