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Appeals - The Nature of an Appeal

. Sorbam Investments Ltd. v. Litwack

In Sorbam Investments Ltd. v. Litwack (Ont CA, 2022) the Court of Appeal considered the nature of an appeal, here in a fresh law case:
[23] An appeal is not a forum for an appellant to advance a fundamentally different case than was advanced at trial. In the circumstances of this case, where the appellant did not plead or lead evidence at trial to support the arguments now raised, it is not appropriate for this court to exercise its discretion to allow the appellant to raise the new theory on appeal. It would be unfair to the respondent, and the evidentiary record from the trial is wholly inadequate to consider the issues: Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at paras. 18-24; Frohlich v. Ferraro, 2017 ONCA 978, 85 R.P.R. (5th) 175, at para. 5.
. Salehi v. Association of Professional Engineers of Ontario

In Salehi v. Association of Professional Engineers of Ontario (Ont CA, 2022) the Court of Appeal declined jurisdiction on a R59.06 set aside motion after an appeal had been heard and decided, although it endorsed that the Superior Court retained such jurisdiction despite the appeal being completed:
[4] The short response to this motion is that this court does not have jurisdiction to entertain a motion to set aside an order that was affirmed on appeal where the motion is based on fraud or newly-discovered facts. Such a motion must be brought before a judge of the Superior Court: R. v. Moura, 2003 CanLII 46485 (ON CA), 172 C.C.C. (3d) 340 (Ont. C.A.), at paras. 24-25; Aristocrat v. Aristocrat (2004), 2004 CanLII 32256 (ON CA), 73 O.R. (3d) 275 (C.A.), at paras. 9-10, leave to appeal to S.C.C. refused (2005), 207 O.A.C. 399 (note); Mehedi v. 2057161 Ontario Inc. (Job Success), 2014 ONCA 604, 123 O.R. (3d) 73, at paras. 15-21.

[5] In Mehedi, Juriansz J.A. explained, at para. 20:
The rationale of rule 59.06(2)(a) continues to apply even though an appeal has been determined. An appeal merely concludes there is no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.
. Barendregt v. Grebliunas

In Barendregt v. Grebliunas (SCC, 2022) the Supreme Court of Canada took the oppourtunity to re-state the nature of an appeal in the context of a Palmer fresh evidence re-consideration:
[1] An appeal is not a retrial. Nor is it licence for an appellate court to review the evidence afresh. When appellate courts stray beyond the proper bounds of review, finality and order in our system of justice is compromised. ...

....

[39] The principle of finality and order has both individual and systemic dimensions in this setting. On an individual level, it speaks to the profound unfairness in providing “a party the opportunity to make up for deficiencies in [their] case at trial”: Stav v. Stav, 2012 BCCA 154, 31 B.C.L.R. (5th) 302, at para. 32. A party who has not acted with due diligence should not be afforded a “second kick at the can”: S.F.D. v. M.T., 2019 NBCA 62, 49 C.C.P.B. (2nd) 177, at para. 24. And the opposing party is entitled to certainty and generally should not have to relitigate an issue decided at first instance, absent a reviewable error. Otherwise, the opposing party must endure additional delay and expense to answer a new case on appeal. Permitting a party in an appeal to fill the gaps in their trial evidence based on the failings identified by the trial judge is fundamentally unfair to the other litigant in an adversarial proceeding.

[40] On a systemic level, this principle preserves the distinction between the roles of trial and appellate courts. Evaluating evidence and making factual findings are the responsibilities of trial judges. Appellate courts, by contrast, are designed to review trial decisions for errors. The admission of additional evidence on appeal blurs this critical distinction by permitting litigants to effectively extend trial proceedings into the appellate arena.
. Mehedi v. 2057161 Ontario Inc. (Job Success)

In Mehedi v. 2057161 Ontario Inc. (Job Success) (Ont CA, 2014) the Court of Appeal states plainly the effect of a successful appeal, and that it doesn't necessarily end the original case:
[20] The rationale of rule 59.06(2)(a) [SS: set-aside or varying order] continues to apply even though an appeal has been determined. An appeal merely concludes there is no reversible error at trial. The rule allows an order to be set aside or varied, not because of any mistake in the proceedings, but because it has become apparent that the decision was wrong due to fraud or other facts discovered after it was made.
. Go Fleet Corporation v. So.

In Go Fleet Corporation v. So. (Div Ct, 2021) the Divisional Court makes these very practical CJA 133 comments, while confirming that appeals on the merits and on costs are separate appeals:
[16] The appellant argues, relying on the 2003 Court of Appeal decision in Byers v. Pentex Print Master, 2003 CanLII 42272 (ON CA), 62 O.R. (3d) 647 (C.A.), that there is some confusion as to when the appeal period begins to run when a merits decision is separately issued from a costs decision. For counsel or a paralegal to argue that there remains confusion in 2021 is simply not acceptable. Byers made it crystal clear, in 2003, that a merits judgment and a costs judgment are separate appealable judgments. This is reflected in the Rules of Civil Procedure. For the merits judgment, the 30-day period under rule 61.04(1) in which to serve a notice of appeal commences from the date of the judgment on the substantive merits.

[17] Leave is required for appeal from costs judgments, even when joined with an appeal as of right (see Courts of Justice Act, R.S.O. 1990, c. C.43, section 133(b), and Rule 61.03 (7)). If costs are appealed as part of the appeal of the merits of the order, the request for leave to appeal should be included in the notice of appeal or in a supplementary notice of appeal (Rule 61.03(7)). The notice of appeal states only that the appellant appeals from the May 7, 2020 decision, makes no reference to costs, and does not seek leave to appeal costs.





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