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Procedure for a Civil Appeal


The following information summarizes the procedure for appeals related to civil cases. The Prince Edward Island Court of Appeal is governed by Rules of Civil Procedure Rule 61.


What is an appeal?


An appeal a review of the reasons for judgment and the record of the proceedings (which means the pleadings and the evidence before the trial judge or administrative tribunal).


The Court of Appeal cannot consider or determine issues other than those raised by the Notice of Appeal or by the submissions made in the court or administrative tribunal being appealed from.

Upon review, the Court can (1) dismiss an appeal, thus confirming the decision of the lower court; (2) allow the appeal and order a new trial or (3) allow the appeal and vary the order of the lower court.

Do I need a lawyer?


Incorporated companies require representation by legal counsel. An individual has the choice to have legal representation. In any event, it is advisable to seek legal advice. 

 

Who may appeal?


Generally, only parties to a proceeding in a civil matter may appeal to the Prince Edward Island Court of Appeal from an order of the Supreme Court of Prince Edward Island. Once an appeal has been commenced, the respondent may cross-appeal.

 

What costs are involved in an appeal?

In addition to legal fees, there is the cost of producing the trial transcript. This may be an expensive cost. An unsuccessful party at the appeal will likely have to pay a contribution toward the costs of the successful party in addition to their own costs. In addition, there are filing fees for certain documents. For a list of fees and the specific documents involved, refer to:


How do I start an appeal?

Generally, an appeal is initiated by serving and filing one copy of a Notice of Appeal (Form 61A), and one copy of an Appellant’s Certificate Respecting Evidence (Form 61C). Proof that copies of both forms have been served on the respondent must be filed with the Court of Appeal. Proof of service outlining when, where, and how the documents were served are filed as an affidavit of service (Form 61B).

The Notice of Appeal must state both (1) the relief sought and (2) the grounds of appeal. A respondent served with a Notice of Appeal may cross-appeal. 

A Notice of Appeal or Cross-appeal may be amended without permission before the appeal is perfected by serving a Supplementary Notice of Appeal or Cross-appeal (Form 61F) on each of the parties on whom the Notice was originally served.

Only those grounds stated in the Notice or Supplementary Notice of Appeal or Cross-appeal may be relied on at the hearing of the appeal, except with permission of the Court.

When is Leave to Appeal required?

In most civil cases Leave to Appeal is not required; the exceptions are (1) orders respecting awards of costs or (2) orders issued by the Court on the consent of parties. 

Is there a deadline to appeal?

Usually a Notice of Appeal must be served on the respondent(s) within 30 days after the date the order being appealed was filed. The appellant then has 10 days from the day the respondent was served to file the Notice of Appeal with the Court of Appeal registrar.

However, if an order is made under the Divorce Act, the Notice of Appeal must be served within 30 days after the date the order was made rather than the date it was filed.

What if the time to appeal has expired?

If the time to file an appeal has expired, an appellant has two options:

(a) attempt to get consent from the respondent(s) for late service and/or filing of the Notice of Appeal, Civil Procedure Rule 3.02(4); or

(b) file a Notice of Motion (Form 37A) in the Court of Appeal for an order extending the time for service and/or filing the Notice of Appeal.  This Notice of Motion must be prepared and a copy served on the respondent(s), and then filed in the Court of Appeal with proof of service.

A notable exception to these provisions is the Workers Compensation Act,  which does not permit the court to extend the time.
 

What are the transcript requirements and time lines?

An appeal is based on the transcript of the evidence heard before the tribunal, provincial court or Supreme Court of Prince Edward Island. If a transcript is necessary for the appeal, the appellant must file proof that a transcript was requested within 30 days after filing the notice of appeal. However, it is important for the parties to carefully consider whether, and how much, transcript is necessary for the appeal because the court may impose costs sanctions where evidence is unnecessarily transcribed.

Who prepares the transcript of evidence?


Transcripts of evidence are prepared by certified court transcribers. Transcripts must be bound in red covers, and if there is more than one volume, they must be clearly numbered.

The court transcriber must give written notice to the Court of Appeal registrar and to the parties once they have the transcript prepared.
 

How do I perfect an appeal?

In a case where no transcript is necessary, you must perfect the appeal within 30 days of filing the Notice of Appeal. If a transcript is necessary, you must perfect the appeal within 60 days of receiving notice that the evidence has been transcribed.

In order to perfect an appeal the following documents must be served on the respondent.

 1. Appeal Book

 2. Transcript

 3. Factum

Then the appellant must file four (4) copies of each of these documents along with proof of service with the Court of Appeal registrar.


Once the three documents have been filed, the appellant must file a Certificate of Perfection stating that the record, exhibits, appeal book, transcript, and appellant's factum have been filed. The Certificate of Perfection must include the name, address and telephone number of

  • the lawyer for every party to the appeal and
  • any person entitled to be heard on the appeal by statute or
  • anyone granted leave to intervene by an order under Civil Procedure Rule 13.03.
If a party does not have a lawyer, the Certificate of Perfection should set out the name, address for service and telephone number of that party. When all this is completed and filed, the appeal is said to be "perfected."

When an appeal has been perfected in this manner, the registrar can set it down for hearing.

What is contained in an Appeal Book?

The Appeal Book contains copies of all pertinent documents that were before the tribunal, provincial court or Supreme Court judge from which the appeal has been taken.

The Appeal Book must be bound front and back in buff colored covers with consecutively numbered pages throughout and a table of contents describing each document included

It must contain the following:

(a) Notice of Appeal and any Notice of Cross-appeal or Supplementary Notice of Appeal or Cross-appeal
(b) the order being appealed
(c) the reasons of the judge or tribunal appealed
(d) the pleadings, notice of application or any other document that initiated the proceedings or defines the issues
(e) any affidavit evidence including exhibits attached thereto that the parties have not agreed to omit

(f) all documentary exhibits the parties have not agreed to omit

(h) the certificates of agreement respecting evidence

(i) any order made respecting the conduct of the appeal

(j) any other document relevant to the hearing of the appeal

(k) a certificate of completeness (Form 61H).

The registrar may refuse to accept an appeal book that does not comply with the Civil Procedure Rules or is not legible.

What information must be contained in the Appellant’s Factum?


The Appellant's Factum must be signed by the appellant or by the counsel or agent for the appellant. In paragraphs numbered consecutively throughout, the factum must contain the following:

  • Part I, a statement identifying the appellant, the court appealed from, and the result in that court;
  • Part II, a concise summary of the relevant facts with such reference to the transcript of evidence by page and line as is necessary;
  • Part III, a statement of each issue raised, immediately followed by a concise argument with reference to the law and authorities relating to that issue;
  • Part IV, a statement of the order sought including any order for costs;
  • Schedule A, a list of the authorities referred to; it is usual practice to file and exchange a copy of the authorities with the references relied upon highlighted. A list of authorities which are commonly cited and not required by the court to be copied and provided can be obtained from the Court website or from the registrar of the Court of Appeal.
  • Schedule B, containing the text of all relevant statutes, regulations and bylaws.

 

Can an appellant obtain an extension of time to perfect the appeal?

If an appellant is not able to perfect the appeal on time they have two (2) options:

1. obtain consent of the other parties to extend the time; or
2. file a motion to be heard in the Court of Appeal asking for an extension of time to perfect the appeal.

How do I respond to a Notice of Appeal?


You must serve and file a Respondent's Factum within 30 days after service of the appeal book, transcript, and Appellant's Factum.

A respondent must file with the Court of Appeal registrar four (4) copies of their Factum along with proof of service on the other parties.

 

The Respondent(s) Factum must be bound front and back with a green cover and be signed by the respondent(s) and their counsel or agent. It shall consist of the following, set out in consecutively numbered paragraphs:

  • Part I, a statement of the facts in the appellant's summary of relevant facts that the respondent accepts as correct, those with which the respondent disagrees, and a concise statement of any additional facts relied on with such reference to the transcript by page and line as is necessary;
  • Part II, the position of the respondent with respect to each issue raised by the appellant, followed by a concise statement of the related law and authorities;
  • Part III, a statement of any additional issues raised by the respondent followed by a concise statement of the related law and authorities;
  • Part IV, a statement of the order sought by the respondent including any order as to costs;
  • Schedule A, a list of authorities; it is usual practice to file and exchange a copy of the authorities with the references relied upon highlighted. A list of authorities which are commonly cited and not required by the court to be copied and provided can be obtained from the Court’s website or from the registrar of the Court of Appeal.
  • Schedule B, texts of all relevant provisions of statutes, regulation, and bylaws not included in schedule B of the appellant's factum.


How do I cross-appeal?


A respondent may cross-appeal by serving the appellant and any other interested parties with a Notice of Cross-appeal (Form 61E) which states the relief sought and the grounds for the cross-appeal. The Notice of Cross-appeal with proof of service must be filed with the Court of Appeal registrar within ten (10) days after service.

A respondent who cross-appeals must prepare a factum as "appellant by cross-appeal" and serve and file it with proof of service with, or incorporated in, the Respondent's Factum.

The appellant must serve and file with proof of service as "respondent to the cross-appeal" within ten (10) days after service of the Respondent's Factum.

Can an appeal or cross-appeal be discontinued or become abandoned?


A party may discontinue or abandon their appeal or cross appeal by serving and filing a Notice of Abandonment (Form 61K).

 

A party is deemed to have abandoned their appeal or cross-appeal if they fail to:

• file the Notice of Appeal;

• request a transcript;

• perfect the appeal;

• file a factum within the times required by Civil Procedure Rule 61; or
• provide security for costs when ordered to do so by the Court of Appeal or by a judge of the Court of Appeal under Civil Procedure Rule 61.14.

When an appeal or cross-appeal is deemed abandoned, the registrar shall send a notice to both the appellant and the respondent.

When an appeal or cross-appeal is abandoned or deemed abandoned, the appeal is at an end and the other side is entitled to costs unless a judge of the Court of Appeal orders otherwise.

Where an appellant abandons or is deemed to have abandoned an appeal, the appellant shall serve notice of that on the respondent. If the appeal is deemed abandoned by the registrar, the registrar shall send a Notice of Abandonment or Deemed Abandonment to all parties. The respondent may within 15 days thereafter serve on the appellant and file, with proof of service, a notice of election to proceed with the cross-appeal (Form 61L). If the respondent does not do so, the cross-appeal shall be deemed abandoned without costs unless a judge of the Court of Appeal orders otherwise.

Who decides motions in the Court of Appeal?

Most motions in the Court of Appeal are heard by a single judge (e.g., extension of time, relief from compliance with rules governing appeal books, or transcripts). Motions for leave to appeal or to receive new evidence are heard by the panel which will hear the appeal. Civil Procedure Rule 37 applies to motions to a single judge in the Court of Appeal. However, the judge hearing the motion may refer it to the full panel. Furthermore, where the motion is decided by a single judge, the unsuccessful party may apply to a full panel of three judges to have the decision set aside or varied.

Can new evidence be introduced at the appeal hearing?

The Court of Appeal will not receive new evidence unless the party seeking to introduce it obtains an order from the Court of Appeal allowing for the introduction of fresh evidence. A party wishing to introduce further evidence on appeal must make a motion to the three-judge panel hearing the appeal. The criteria for obtaining an order are quite stringent. A motion to introduce new evidence must be in compliance with Civil Procedure Rule 37 and Rule 61.13. The panel will decide if new evidence will be considered. 

What happens to the order of the lower court when an appeal is commenced?

The order remains in effect unless a judge grants a stay (postponement) of its effect. You may apply to a Court of Appeal judge in chambers who may order that all or part of the proceedings from the lower court be stayed or held in abeyance until the appeal is decided. Rule 63 of the Rules of Civil Procedure provide for a Stay Pending Appeal.

What happens in a Court of Appeal hearing?


A panel of three judges hears all appeals. An appeal hearing is very different from a trial. It is not a new trial; there are no witnesses called in an appeal hearing; and there is no jury.

Before the appeal hearing, the appeal judges review the reasons for the decision of the judge or tribunal appealed from, all relevant evidence presented in the lower court, and the written arguments set out in the factums.

At the hearing, the parties have an opportunity to make oral argument to the Court. These arguments are based on the arguments outlined in the factums.

To commence the hearing, the court clerk calls the Court of Appeal to order and calls the case. The appellant first addresses the Court setting out his or her argument which is based on the factum. The respondent then does the same. The appellant then has a limited right to reply. The purpose of reply is to address issues raised by the respondent that were not addressed during the appellant’s initial submissions.

The judges usually ask questions as the oral argument is presented.

What should I call a Court of Appeal judge? 

Their title is "Chief Justice" or "Justice" (the Honourable Madam Justice Smith or the Honourable Mr. Justice Smith). In court, they are addressed as "Chief Justice", "Justice", "My Lord" or "My Lady". Collectively, they are referred to as the "Judges of the Court of Appeal". 

What should I wear when I go to court?

The justices, lawyers, and court clerk wear black gowns for appeals and chambers matters. Members of the public participating in appeal proceedings should be appropriately dressed in a suit or proper business attire.

May I observe other appeal hearings in preparation of my appeal?

Court proceedings are generally open to the public, except in rare cases where matters are heard "in camera." In those cases, no member of the public is allowed to attend. In some cases a publication ban is in effect. If a publication ban is ordered, the name of the accused or victim may not be published. In family law cases, the names are not usually published.

When is the result of an appeal decided?

The Court of Appeal may give its decision orally the day the appeal is heard. Most often the Court will "reserve" the decision. This means that they will take time to deliberate about the arguments and provide written reasons later in the form of a judgment.

When the judgment is ready to be released, the deputy registrar of the Court of Appeal will contact counsel for the parties or a self-represented litigant directly by telephone and explain the judgment release process. The parties are contacted 48 hours in advance of the filing and release of a judgment. At nine a.m. on the morning of filing the judgment, the parties may pick up their copy of the decision or have it sent to them by mail or email. The decision is then placed on the Court’s judgment website.

Once the judgment is given, the parties must prepare an order. Usually the successful party prepares a draft order and obtains the consent of the other party regarding the form of the Order. Where one party has counsel and the other party is self represented, the Court usually requests counsel to prepare a draft order. This order is signed by the Court of Appeal judges and filed with the Court of Appeal Registry.
The Court of Appeal may dismiss the appeal (which means that it confirms the decision of the lower court); allow the appeal and order a new trial; or allow the appeal and change the order of the lower court. 

Who pays the costs of an appeal?

It is common for the Court of Appeal to order the unsuccessful party to pay costs to a successful party. This enables the successful party to recover a portion of the expenses incurred. The decision to award costs and the amount of the costs awarded are at the discretion of the judges. Costs are usually payable thirty days following the judgment.

Can a Court of Appeal decision be appealed?

In most cases, a party may seek leave to appeal to the Supreme Court of Canada in Ottawa. First, a party has to apply to the Supreme Court of Canada for leave or permission to file a Notice of Appeal. For information visit the Supreme Court of Canada.

 
This information is not intended to give legal advice. Courthouse staff cannot provide legal advice, nor can they conduct or respond to an appeal on your behalf.


For more information contact the:

Prince Edward Island Court of Appeal

42 Water Street,

Charlottetown, PE

C1N 7N8

Telephone number: 902-368-6024

Facsimile number: 902-368-6774

 

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