The Judge Got it Wrong – Appealing to the Nova Scotia Court of Appeal
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Nova Scotia Supreme Court Decisions are Appealed to the Nova Scotia Court of Appeal
You’ve just received your decision from the Nova Scotia Supreme Court and you’re convinced the judge got the ruling wrong. What are your options? The only opportunity to change the outcome is to appeal to the Nova Scotia Court of Appeal. You only have a small window to appeal – as little as 25 (business) days in many cases, so your first call should be to a lawyer familiar with both the subject area of law of your matter, but also with the Court of Appeal.
The Court of Appeal only considers is an error was made.
Hearings at the Nova Scotia Court of Appeal are quite different than hearings at the Supreme Court. The biggest difference is usually no new evidence is entered. The Court of Appeal’s job is to examine the court record (including the evidence, arguments, transcript and decision) from the Supreme Court and determining if a significant error has been made. The Court of Appeal will not overturn a Supreme Court decision on the basis of an inconsequential error. The error would have to change the actual outcome.
The two categories of error in the Nova Scotia Court of Appeal
Errors in law
Errors in fact
Errors of Law are determined on a standard of Correctness
If you claim there is an error in law, the Court of Appeal will determine whether the Supreme Court got it right or not. This is called the standard of correctness.
Errors of Fact are determined on a standard of palpable and overriding error
If you claim there is an error of fact, the Court of Appeal will determine whether there was a palpable and overriding error. ‘Palpable’ means whether it’s a really obvious mistake (eg. It got material dates wrong) and ‘Overriding’ meaning it is such a big mistake that it would affect the outcome of the case. If the alleged error is not blatantly obvious on its face, the Court of Appeal will not overturn the Supreme Court decision.
Costs against the unsuccessful party can be 40% of Supreme Court Costs awarded
The Court of Appeal is not a venue to have a second trial just because you don’t like the outcome of the Supreme Court decision. Proceeding with an appeal will be very costly as the loser will typically pay 40% of the costs awarded by the Supreme Court.
If you think your matter is appropriate for the Nova Scotia Court of Appeal, learn more about the process in our blog How can I appeal a decision of the Supreme Court of Nova Scotia?
*This blog is in relation to civil litigation matters, not family/divorce/child protection, Workers Compensation or criminal matters.
By: Dianna M. Rievaj – Managing Lawyer
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