APPELLATE LITIGATION

The timelines are short. In most civil cases an appeal to the Alberta Court of Appeal must be filed within one month of the decision. An appeal of an Applications Judge's decision must be filed within 10 days of service of the filed order. The Courts do not calculate the deadline for the parties. A missed deadline is generally fatal to your right to appeal unless the Court grants an order otherwise. Even if an appeal is filed on time, there are continuing obligations to keep the appeal progressing. Confirming the exact period that applies to a particular judgment is one of the first tasks appellate counsel performs and it is critical that you contact us as soon as possible.

There is a distinction to be made between the right to appeal and whether an appeal will succeed. Some appeals are "appeals as of right" meaning that you do not need permission from the Court to file an appeal. Some statutes such as the Arbitration Act specifically set out that no appeals are permitted. Not every perceived error makes solid grounds for an appeal. Canadian appellate courts review questions of law for correctness, but findings of fact and inferences from evidence are reviewed only for palpable and overriding error. Trial judges are given considerable deference on findings of fact or credibility. However, errors of pure law are reviewed without the same deference to the original judge. These are technical issues that we will review with you prior to filing your appeal.

Only rarely and a strict legal test is applied. An appeal to the Alberta Court of Appeal is not a new trial or a new hearing. The court reviews the record from the court below, the transcripts, exhibits, and reasons, for reviewable error. Witnesses do not testify again. Fresh evidence is admitted only with the court's permission, on a test that asks whether the evidence could have been obtained for trial with due diligence, whether it bears on a decisive issue, whether it is credible, and whether it could have affected the result. The position differs for appeals from an Applications Judge within the Court of King's Bench of Alberta, where new evidence is more readily received.

In Alberta, filing an appeal does not automatically suspend the judgment under appeal, if that judgment originated from the Court of King's Bench. The successful party is presumptively entitled to their judgment and can take enforcement steps while the appeal is pending. An application to stay a judgment is heard before a single judge of the Alberta Court of Appeal, and the applicant must meet the test for injunctive relief. If the party can show an arguable appeal, irreparable harm if enforcement proceeds, and that the balance of convenience favours a stay, then a stay of enforcement may be justified. If you are concerned about the ability to collect from a judgment creditor after a successful appeal then it is a good idea to discuss a stay application with us.

Decisions of an Applications Judge are appealed to a justice of the Court of King's Bench of Alberta under Rule 6.14 of the Alberta Rules of Court. Unlike most appeals, this one can be a fresh hearing. The Justice will consider the issue anew rather than deferring to the Applications Judge's conclusions, and new evidence may be presented without seeking permission. The Justice does not necessarily need to accept the new evidence but the test for whether new evidence should be allowed is quite permissive. These appeals remain within the Court of King's Bench litigation and are distinct from an appeal to the Alberta Court of Appeal. Baker Law Firm has published a detailed analysis of Rule 6.14 appeals on this site.

Summary judgment can be granted by either an Applications Judge or a Justice of the Court of King's Bench of Alberta. Either can be appealed provided the timelines are complied with. An order for summary judgment granted by an Applications Judge can be appealed within the Court of King's Bench to a single Justice. A summary judgment order granted by a Justice of the Court of King's Bench would be heard by a panel of three Justices of the Alberta Court of Appeal. Baker Law Firm regularly acts as appellate counsel in both scenarios.

A Court's judgment stands unless and until it is set aside or overturned. An appeal from the Alberta Court of Justice automatically stays your right to enforce your judgment. However, this is not the case for a decision of the Court of King's Bench. As the respondent to the appeal, you will respond to the materials filed by the Appellant. If there are portions of the decision you did not win or are not happy with, you may be able to file a cross-appeal. The appeal and any cross-appeals are generally heard together and will follow the procedures of the Court hearing them.

Appellate work in Alberta is a distinct discipline, and parties regularly retain new counsel for the appeal. An appeal is argued from the written record, so appellate counsel does not need to have conducted the trial. Often clients will want a fresh analysis. An unbiased review of the reasons and transcripts from a lawyer experienced with the rules and requirements of an appeal can add real value to a client. If you are considering switching counsel for an appeal, or if your current lawyer does not do appellate work, Baker Law Firm accepts appellate retainers at any stage.