Appellate Procedure in Canada

Introduction

Appellate procedure governs the process by which decisions of lower courts are reviewed by higher courts. In Canada, the appellate system is hierarchical, with provincial Courts of Appeal and the Federal Court of Appeal sitting as intermediate appellate courts, and the Supreme Court of Canada as the final court of appeal. The appellate process is governed by a combination of statutes, rules of court, and common law principles.

The Appellate Court Structure

Provincial Courts of Appeal

Each province and territory has a Court of Appeal (called the Court of Appeal for…) that hears appeals from:

• Provincial superior courts (trial divisions)
• Provincial courts (inferior courts, for summary conviction appeals and some appeals by stated case)
• Certain administrative tribunals (by statute)

Provincial Courts of Appeal typically sit in panels of three judges, though five-judge panels may be convened for cases of particular importance (R v. Chan, [2021] 2 SCR 315).

Federal Court of Appeal

The Federal Court of Appeal hears appeals from:

• The Federal Court (trial division)
• Certain federal tribunals (by statute, including the Immigration and Refugee Board, Competition Tribunal, and labour boards)

Supreme Court of Canada

The Supreme Court of Canada (SCC) sits as the final court of appeal for the entire country, hearing appeals from provincial Courts of Appeal and the Federal Court of Appeal.

Rights of Appeal

As of Right

A right of appeal exists in:

• Final orders of a superior court (appeal to the Court of Appeal)
• Criminal cases: Conviction, acquittal on an indictment, and sentence (subject to restrictions)
• Certain interlocutory orders specified in the rules

The scope of appeal as of right varies by province and by the nature of the case.

By Leave

In many cases, appeal requires leave (permission) from the appellate court. Leave is required for:

• Interlocutory orders in many provinces
• Appeals to the SCC: Except in certain criminal cases where the Court of Appeal divided or where a constitutional question is involved
• Sentence appeals in some circumstances

Leave to appeal is granted where the case raises an issue of public importance or where there is a compelling reason for the court to hear the appeal. The SCC grants leave in approximately 10% of applications.

Summary Conviction Appeals

Appeals from summary conviction proceedings follow a distinct track under Part XXVII of the Criminal Code:

• First appeal: To the superior court (trial de novo or appeal on the record)
• Second appeal: To the Court of Appeal (by leave on a question of law alone)

The Appeal Process

Notice of Appeal

The appellant files a notice of appeal within the prescribed time limit (typically 30 days for civil appeals, 30 days for criminal appeals in most provinces). The notice identifies the order appealed from and the grounds of appeal.

Perfecting the Appeal

The appellant must perfect the appeal by filing:

• The appeal book: A compilation of the trial record, including pleadings, evidence (transcripts), exhibits, and the judgment under appeal
• The appellant’s factum: A written argument setting out the facts, legal issues, and submissions
• The transcript of the trial proceedings (or relevant portions)

Factums

The factum is the principal written submission. It must contain:

• Part I: Statement of facts (concise and accurate)
• Part II: Issues on appeal
• Part III: Argument (legal submissions with citations)
• Part IV: Order sought

The respondent files a respondent’s factum responding to the appellant’s arguments. Both parties must file within the time limits prescribed by the rules.

Oral Argument

Following the exchange of factums, the court schedules oral argument. Each party is allotted a specific time (typically 15–45 minutes per side at the Court of Appeal, 60 minutes per side at the SCC). Oral argument:

• Is not a repetition of the factum
• Should focus on the key issues and respond to questions from the bench
• Is subject to time limits strictly enforced

Standards of Review

The standard of review determines the degree of deference an appellate court shows to the lower court’s decision. The framework was established in Housen v. Nikolaisen, [2002] 2 SCR 235:

Questions of Law

Correctness: The appellate court reviews questions of law de novo. It may substitute its own view for that of the lower court. An error of law is grounds for reversal.

Questions of Fact

Palpable and overriding error: The appellate court must defer to the trial judge’s findings of fact unless the error is palpable (clearly identifiable, obvious) and overriding (affected the result). This deferential standard reflects the trial judge’s advantage in assessing credibility and weighing evidence.

Questions of Mixed Fact and Law

Palpable and overriding error is the general standard, unless the question involves an extricable error of law (e.g., applying the wrong legal test), which attracts correctness review.

Discretionary Decisions

Deference is owed to discretionary decisions. The appellate court should not interfere unless the decision was based on wrong principles, failed to consider relevant factors, or was clearly wrong.

Powers of the Appellate Court

The appellate court’s powers include:

• Dismissing the appeal
• Allowing the appeal and substituting the appropriate disposition
• Ordering a new trial
• Varying the sentence (criminal appeals)
• Making any order that could have been made at trial

The court may also grant leave to raise new issues not argued at trial, but this is exceptional and requires the moving party to demonstrate that the interests of justice require it.

The Supreme Court of Canada

Composition

The SCC consists of nine justices, including the Chief Justice of Canada. Quorum is five justices. Panels of seven or nine typically hear cases of constitutional importance or where the Court intends to overrule a prior decision.

Leave to Appeal

Most appeals to the SCC require leave, determined by a panel of three justices on the written record (no oral argument). Leave is granted where:

• The case raises a question of public importance
• The case involves a significant issue of law or mixed law and fact
• The case raises a constitutional question

As-of-Right Appeals

Appeals to the SCC as of right exist in limited circumstances:

• Criminal cases where a judge of the Court of Appeal dissented on a question of law
• Constitutional questions (provincial references, some Charter cases)
• Provincial references referred to the Court of Appeal

Hearing Process

Appeals proceed with:

1. Perfection (filing of record and factums)
2. Oral hearing (typically 60 minutes per side)
3. Reserved judgment: The Court typically reserves judgment for 3–6 months

The Role of the SCC

The SCC’s role extends beyond correcting errors in individual cases. The Court develops the common law, interprets the Constitution, and provides authoritative guidance on legal issues of national importance. The Court selects cases that raise issues of public importance and that provide opportunities to clarify or develop the law.

Conclusion

Canadian appellate procedure provides a structured framework for reviewing lower court decisions, balancing the values of finality, correctness, and access to justice. The Housen standards of review ensure appropriate deference to trial courts while maintaining appellate supervision over legal errors. The Supreme Court of Canada, as the final appellate court, plays a vital role in developing the law and ensuring national legal coherence.