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Appeal - Basics

To start with this rather big legal topic I think it's better to clarify (and dispel) some basic points. Here's a bullet-point list of key appeal issues and typical misunderstandings:
  • You Appeal Orders, Not Reasons

    It may not seem important initially, but you appeal 'orders' (judgments are orders) - not 'reasons' ('reasons' are explained in the 'Reasons for Decision' or some equivalent). If you get the result that you want, but for different reasons than you argued, you can't appeal successfully.

  • All Appeals are Statutory

    All appeals (unlike 'judicial reviews') are 'statutory'. That is, somewhere out there in the statute books are provisions that legally-establish the particular appeal you are considering. Without such provisions there is no appeal right. For administrative (tribunal) appeals the provisions are normally located in various 'parent' statutes [eg. s.210 of the Residential Tenancies Act for LTB appeals to the Divisional Court], and for court appeals it's mostly in the Courts of Justice Act.

  • If No Appeal, You May Have a Judicial Review Right

    There isn't an appeal for everything. When you don't have an appeal right, lawyers will commonly consider judicial reviews (JRs). JRs aren't guaranteed as a right either, as you will see if you read on at that link (which is pending updating after this 'appeals' section).

  • An Appeal Isn't Another Kick at the Can

    Appeals aren't 'another kick at the can', in the sense that the appellant (the party appealing, as opposed to the respondent) can re-present their side's evidence case and legal arguments (and perhaps with a few additional ones that they forgot the first time around) and see what this (higher) court thinks. If you try that in an appeal you're just going to piss the judge/s off.

  • An Appeals Is About Identifying Errors

    Appeals are all about alleging 'errors' made by the previous level decision-maker, and convincing the appeal court that you are right when you do so. To run a successful appeal you must not only show that you are right in pointing out the error, but that the error made a difference in the result - we call this 'showing prejudice', or 'being material'.

  • Understanding the Different Types of Errors

    The big three categories of appeal errors are: 'legal errors', 'fact errors' and 'errors of mixed fact and law' (there are a few others, like procedural fairness, natural justice and errors of jurisdiction - but for now let's just focus on these three).

    . Errors of Fact

    Facts are what you get after you present your evidence to a decision-maker, and they run it through the rules of evidence that apply to your case. Then - when that's done - they should state the facts 'that happened'. Everyone involved knows this isn't an omniscient (all-knowing) statement of reality, but it's the best that we humble humans can do. We work with it because there's no better option, and until someone comes up with a workable magic ball - or democracy collapses - you need to live with that.

    Errors of fact are errors in this fact-determination process - ie. the application of the accepted rules of evidence to the evidence that was put before the decision-maker.

    . Errors of Law

    Law, unsurprisingly, is about rules. Simply, when the decision-maker makes a mistake about those rules it is an error of law.

    Commonly, a legal issue will turn on a 'test' which comprises several elements. Here's a simple test for something called 'promissory estoppel' [Maracle v. Travelers Indemnity Co. of Canada (SCC, 1991)]:
    The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position.
    If your decision-maker applies the doctrine of promissory estoppel but the case doesn't have the required evidence or circumstances to meet that test - or if they misunderstand the effect of promissory estoppel in their reasoning - or they in any other way screwed up that important process, then you may have a legal error to work with on your appeal.

    . Errors of Mixed Fact and Law

    Now we get the "errors of mixed fact and law", which should be obvious after the immediately-above explanations. One judge described these issues as involving the
    "application of a legal standard to a set of facts" [1475182 Ontario Inc. o/a Edges Contracting v. Ghotbi (Div Ct, 2021), para 29]. Simply, it's about applying the found facts to the legal test.

    An example: "(w)hether a limitation period expired before an action was commenced is a question of mixed fact and law" [Fercan Developments Inc. v. Canada (Attorney General) (Ont CA, 2021)] - ie. it involves ascertaining both the facts of the case and the law of limitations, and seeing if the facts satisfy the applicable test.


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