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Appeals - The Nature of an Appeal. Grillone (Re)
In Grillone (Re) (Ont CA, 2023) the Court of Appeal considered a respondent appeal motion to lift an automatic stay [under BIA s.195] and/or an order for security of costs for the appeal.
In this quote the court comments on the nature of an appeal, and the role of motions in appeals:[24] An appeal is a completely different litigation creature than a first instance adjudication on the merits. An appeal is not a process designed to create an evidentiary record, save in the small number of cases that involve fresh evidence that meets the stringent requirements of the test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. Instead, an appeal takes the record created below, subjects it to panel review in accordance with the applicable standards of review, and may result in appellate intervention where a reversible error is identified in the decision below.
[25] Since an appeal essentially involves taking the record created below and packaging it for appellate consideration in the form prescribed in considerable detail by the Rules and the practice directions of this court, resort to motions in most civil appeals is unnecessary and wasteful. Most civil appeals involve only a handful of issues, so disputes about timelines and “packaging” of the record can and should be worked out by the parties through a process of reasonable discussion. Indeed, the rise in civil pre-hearing motions in this court over the past decade has been a most unfortunate development; there is no need for resort to this court to resolve most pre-hearing disagreements. And while appeal management conferences can play a useful role in complex, multi-party appeals, this is not such an appeal. . Johnson v. Canada
In Johnson v. Canada (Fed CA, 2023) the Federal Court of Appeal considered the nature of an appeal:[26] ... An appeal to this Court is from the Order and not the reasons (Stubicar v. Canada, 2020 FCA 66, at para. 77). ... . Strutzenberger v. Strutzenberger
In Strutzenberger v. Strutzenberger (Ont CA, 2023) the Court of Appeal considered (and dismissed) an appeal of a 2023 lower court order that allowed an application to retroactively vary (by reduction) the arrears owing from a prior 2018 spousal support order. The appellant, despite benefitting from the variation, sought on appeal a further waiver of arrears existing at the date of the original 2018 order, arguing they were within the 2023 lower court's jurisdiction:[1] On application by the appellant, Pierce J. varied the spousal support order made by Newton J. in February 2018. She reduced the arrears owing from the years following the order of Newton J. The appellant appeals, arguing that Pierce J. erred in not also extinguishing the arrears that were owing at the time Newton J. made his order in 2018. The appellant further argues that Pierce J. should have set aside the cost order made by Newton J.
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[5] The correctness of the order made by Newton J. in respect of arrears outstanding at the time of his order cannot be attacked by way of a subsequent motion to vary the order of Newton J.: Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at pp. 687-88. The appropriate remedy was by way of appeal from the order of Newton J. In fact, the appellant did exactly that. He, however, chose to abandon that appeal. . O’Brien v. Bell
In O’Brien v. Bell (Div Court, 2023) the Divisional Court makes the straightforward (but useful) point that orders may contain both final and interlocutory aspects, and that it is what is appealed that governs the final versus interlocutory issue:[8] In the face of this line of authority the respondent argues that since some of the terms of the order are interlocutory, leave is required. This is no answer to the line of authority described above. An order may contain aspects that are final and aspects that are interlocutory. Appeal rights are determined by examining the issue on appeal. In this case, the issue on appeal is the order for sale, which is a final order under the Partition Act. Leave to appeal is not required. . Jasiobedzki v. Jasiobedzka
In Jasiobedzki v. Jasiobedzka (Ont CA, 2023) the Court of Appeal considered the nature of an appeal, specifically that appeals challenge orders, not reasons for decision:[10] We do not have the authority to revise the decisions that come before us to rectify errors. An appeal is from a judge’s order, not from their reasons. This court’s powers on appeal therefore relate only to the order: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134; see Trez Capital Limited Partnership v. Bernstein, 2018 ONCA 107, at para. 26, citing Drywall Acoustic Lathing and Insulation, Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2015 ONCA 718, 340 O.A.C. 271, at para. 13, MacKinnon v. Ontario (Municipal Employees Retirement Board), 2007 ONCA 874, 88 O.R. (3d) 269, at para. 44. The endorsement cannot be corrected, even if errors appear. Our task is to determine whether any errors that may have occurred, including the factual errors the husband asserts, provide a basis for setting aside the trial judge’s orders. . Brown v. Canada
In Brown v. Canada (Fed CA, 2022) the Federal Court of Appeal considered the nature of an appeal:[50] An appeal to this Court is not a trial de novo. If the lengthy affidavit and the many new documents would have been admitted, the Crown would have had the right to cross-examine Ms. Bezpala-Brown and, in effect, the appeal would have become a new trial. As noted recently by the Supreme Court in Nova Chemicals Corp. v. Dow Chemical Co., 2022 SCC 43, at paragraph 72, the Supreme Court is not a court of first instance and it is not the role of that Court to review the entire record and make factual findings. These comments apply equally to this Court. . R. v. O'Hanley
In R. v. O'Hanley (Ont CA, 2022) the Court of Appeal characterized the nature of an appeal, here in a criminal case:[18] ... The appellate process is not an opportunity for this court to reweigh evidence that was carefully considered by the trial judge: R. v. Fournel, 2014 ONCA 305, 319 O.A.C. 42, at para. 48. . 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. ...
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[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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