Appeals and Judicial ReviewsBear Creek Law is pleased to offer our assistance with Appeals and Judicial Reviews for our clients in and around Surrey.
Appeals focus on determining whether the trial court erred in law or misapprehended the evidence and what the appropriate remedy is. Typically, absent palpable and overriding error, an appellate Court will not interfere with the facts found by a trial judge. Errors of law however are not entitled to deference on appeal and are decided on a standard of correctness. This area of law is very involved. If you have launched an appeal you will generally require to write a factum which provides a relatively dense, but complete written argument. Generally factums are 40 pages in length and are read by the Court of Appeal panel that will hear your appeal well in advance, and also by their law clerks. Appellate law is primarily a form of written advocacy.
Judicial reviews are sometimes equated to appeal from administrative tribunals as opposed to trial courts. The B.C. Securities Commission can hold lengthy multi-week hearings that look like trials, but are technically only hearings and cannot be appealed – they must be made the application of a judicial review. Judicial reviews differ from appeals in a number of important ways. The availability of reviewing an interim decision is quite different depending on whether it was made by an administrative tribunal or by the Supreme Court. The other large difference is the standard of review. Administrative tribunals are given great deference on judicial review and their interpretation of the law does not need to be correct, particularly if they are interpreting their home statute – i.e. the B.C. Securities Commission interpreting the Securities Act. All judicial reviews have a further right to appeal to the B.C. Court of Appeal but on very narrow grounds. Lastly, the most common remedy if you are successful on judicial review is for a new hearing rather than the outcome being directly overturned, however there are some important exceptions.
There are strict timelines for launching your appeal or judicial review. Some appeals first require you to seek the blessing of the Court, particularly when you are appealing a non-final order. This step of the proceeding is called a motion for leave to appeal. After you have filed the appropriate document with the appropriate level of Court there continue to be strict timelines for the ordering of transcripts, filing of appeal records, appeal books, and preparing, filing, and serving your factum.
In both appeals and judicial reviews there are powers for interim orders to be made – such as a stay of the underlying decision pending the Court hearing your appeal or judicial review. When acting for Respondents – i.e. the party defending the underlying decision – we are often able to apply successfully for security for costs from the Appellant, and in appropriate cases will also seek security for the trial award and trial costs. These orders are often accompanied by a “guillotine” order, which ends the appeal if the costs are not paid in time.
Aside from ensuring you meet all deadlines required, the advice for each appeal and judicial review is incredibly personal and unique and generic advice is hard to really offer. In some cases it is possible to try and introduce new evidence. In other cases it may be appropriate to make a preliminary application to quash the appeal as being defective.
Some clients are thrilled to know that their participation is often very limited. Unlike trials where the client is heavily involved in trial preparation, determining the order of witnesses to call, and negotiations, generally appeals and judicial review do not involve the client in any great depth in the decision making process except for determining which grounds of appeal to pursue and whether new evidence will be sought to be adduced.
When we get a new file we start a comprehensive review of the trial evidence as well as the reasons for judgment to determine all possible avenues of appeal, the odds of success, and which remedy would be granted if successful. The remedy on an appeal may be a new trial, a reduction in the trial award, or a reversal of the trial decision entirely. Depending on the nature of the order sought, other remedies may be available. Generally an appellate Court, or the Supreme Court on judicial review, may make any order that the Court or tribunal below may have made. We work to ensure that the grounds of appeal or review pursued will actually result in an outcome that justifies the additional cost and risk associated with an appeal.
When we are retained to act for a Respondent on appeal we explore options to cross-appeal which allows a party who was ultimately successful at trial, but unhappy with a part of the result to seek to overturn the part of the decision that they are unhappy with. When defending a trial judgment or other decision we often work quickly to secure security for costs, as well as seek dismissal of the appeal proceeding if the Appellant has failed to meet their deadlines without reasonable excuse.
In cases in which leave to appeal is required, we handle all aspects from advancing this preliminary step, to defending against it and trying to put the proceedings to a complete halt if we act for the Respondent.
Many people also don’t realize that an appeal or judicial review does not put a stay, or hold, on the decision below. When we act for Respondents we offer our clients to continue enforcement proceedings if they have been award a monetary judgment. When acting for Appellants we swiftly move to have the below proceedings stayed pending the outcome of the appeal or judicial review.
In both cases, regardless of which party we represent, we prepare comprehensive and persuasive arguments to convince the Court of Appeal, or the Supreme Court on judicial review, of the end result that we want to accomplish.
Client involvement will typically occur at the initial stages of a file, when we work to identify the best grounds of appeal taking into account the additional costs and risks involved, as well as any interim steps that need to be taken, such as having the other side post security for costs or getting a stay of the below result. After that, we will take all additional steps to advance your role in the appeal or judicial review including ordering transcripts, drafting our argument, and if appropriate, putting in an application for fresh evidence.
Appeals and judicial reviews have important deadlines towards the beginning of a file, and after arguments are completed and filed there is often a significant break until you get a hearing date for oral argument. Most oral arguments conclude in either a half day, or a full day. Unlike trials, the overwhelming majority of the work and time spent on a file is in the written argument.
After a decision has been rendered on the appeal or judicial review, both you and the other side will have the ability to seek a further appeal, either to the B.C. Court of Appeal, or the Supreme Court of Canada. Although getting a second appeal is possible, it is by no means an easy task and the work involved usually magnifies as the grounds of appeal are more limited and usually requires an extremely comprehensive review of the law from both B.C. Courts, and other Provinces and potentially other commonwealth countries.
If you are successful on your appeal or judicial review, we will explore options with you regarding enforcement of the underlying order, or if a new trial has been ordered how to best approach that.
Clients should be aware that there are significant disbursements incurred in both judicial review and appeal proceedings. The number of copies needed to be filed and served will be several multiples of what was required for trial, and case authority will also be significantly more than what was provided to the presider below. It is not uncommon for photocopying and printing to be in the thousands, or tens of thousands of pages.
Unless your appeal is a slam dunk, it is relatively common for the writing of a factum and related research to take 40-80 hours depending on complexity, in addition to the time taken to review transcripts and trial evidence. Most factums are 40 pages or longer – which to put into perspective is equivalent to a lengthy final paper for a senior level university class. However the oral arguments are generally restricted to only one or two hours per side. The vast majority of the expense of an appeal occurs in the factum writing stage where arguments are developed and reinforced by finding other cases that have been decided in the way that your trial should have gone.
Appeals and judicial reviews are often done on either a flat fee basis, or an hourly basis. While it can be possible to do either on a contingency basis, often there will still need to be a significant retainer deposited to cover the costs of printing and filing.
Contact us either at (604) 259-6200 or using the form below for assistance with Appeals and Judicial Reviews
The foregoing provides legal information and does not constitute legal advice. As an analogy, legal information are equivalent to learning the rules of chess, and legal advice is the tactics and strategy that goes into winning a game. Lawyers are trained to give valuable advice that is specific to you after learning about the details of your case. Readers are cautioned that they will rarely achieve the best outcome for their case without actual advice. A consultation is often the best next step to take.