How can I appeal a decision of the Supreme Court of Nova Scotia?
/
When the judge renders their decision after a Supreme Court of Nova Scotia trial, generally for ever one party that is happy and convinced the judge got it right, there is another party that is upset and equally convinced the judge got it wrong.
Appeals must be filed within 25 days (or less in some cases)
The Appeal window is very short. In most cases (and there are some exceptions), Rule 90 of the Nova Scotia Civil Procedure Rules, which governs appeals, states that a party who wishes to commence an Appeal to the Nova Scotia Court of Appeal from an Order issued by the Supreme Court of Nova Scotia for most civil litigation matters* must file their Notice of Appeal, along with a copy of the decision or order appealed from, within 25 ‘business’ days.
Notice must be provided to opposing parties and the original judge
After filing, a copy of the notice of appeal must be delivered to the opposing party(s) as well as to the court appealed from, for the information of the judge who made the decision.
Information required in the Notice of Appeal
The Notice of Appeal must include a list of specific identifying information, including things like the name of the court appealed from, the date of the order or decision, the effect of the order or decision, the court number and name of the judge that issued the decision.
It must also include a statement of whether all or only a part of the order is being appealed from, and if it is a part, a statement describing the part. It must include a concise statement of all grounds of appeal, the statutory authority for the appeal, and a concise description of the order sought.
Grounds of Appeal are critical
Keep in mind it’s critical to get your ‘Grounds of Appeal’ right, as it is a specific provision of CPR 90 that the appellant may not rely on any ground of appeal not specified in the notice, without special permission from the Court.
Motion for Directions to set the Appeal Hearing date
After the Notice of Appeal is filed and notice to the other parties provided, the next step, which must take place no later than eighty days after the day the notice of appeal is filed, is a motion to a judge of the Court of Appeal to set the time and date for the appeal to be heard and to provide directions.
Prior to the motion for directions, the Appellant is required to file a Certificate of Readiness, which includes among other things a confirmation that the audio recording of the Supreme Court hearing (and transcription of same) have been ordered. You will also be expected to provide a date by which you will file your ‘Appeal Book’ – which is essentially a paper copy of every element of the Supreme Court proceeding.
Perfecting the Appeal
Note, if the technicalities are not conformed with, within the prescribed timelines, the Appeal can be dismissed.
The Hearing
Parties will file a written pre-hearing brief, known as the Factum, outlining the basis for their Appeal/Response. New evidence is only heard by the Court of Appeal by permission. At the hearing itself parties will have an opportunity to present their position to a panel of three judges. Expect the judges to have a lot of questions. Decisions are usually ‘reserved’, meaning the judges will opt to deliver a decision in writing at a later date.
Standard of Review
It is important to understand that the Court of Appeal does not have the jurisdiction to ‘retry’ a case. It is only able to consider:
Questions of Law - considered on a standard of whether the lower court got the law correct or not.
Questions of Fact – considered on a standard of whether the lower court made a “palpable and overriding error” that had a material impact on the outcome of the matter.
Mixed Question of Law and Fact - considered on a standard of whether the lower court made a “palpable and overriding error” that had a material impact on the outcome of the matter, unless there is a question of law that can be extricated which will be decided on a standard of correctness.
Quite obviously, proceeding with an Appeal to the Nova Scotia Court of Appeal is a serious matter full of a laundry list of technicalities. If you are considering appealing a decision of the Supreme Court of Nova Scotia, it is strongly recommended that you seek advice from a lawyer familiar with the Court of Appeal as soon as possible.
*The filing deadline and several other requirements for an Appeal to the Nova Scotia Court of Appeal for Orders issued under the Divorce Act, Child Protection, the Workers Compensation Act, interlocutory or ‘costs only’ orders are different that those for general litigation matters.
By: Dianna M. Rievaj – Managing Lawyer
Have Questions For Us?:
If you have any questions you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice, before deciding whether or not you'd like to retain us.
The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Nothing contained on this blog is legal advice or constitutes a legal opinion. While it is our goal to provide information which is current, legislative changes and court decisions, among other matters, may result in some information no longer being current or accurate. You should consult a lawyer before relying on any information. The views expressed herein by individual contributing lawyers posting entries to the blog are solely those of the authors and should not necessarily be attributed to or considered representative of the firm of Highlander Law Group Lawyers
