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Let cooler heads prevail on decision to appeal

|Written By Kirsten McMahon

To appeal or not appeal? That is the question counsel may find themselves asking after being on the losing end of a case they were positive would be successful.

Appealing a case shouldn't be automatic, say experts, and counsel would be well advised to take a step back from the case and let cooler heads prevail before making the next move.

"When a lawyer is considering an appeal it's always good to get an outside opinion. By that I mean an opinion from a person that has not been associated with the file -- I don't necessarily mean a person outside the firm, but from a lawyer who has not been involved," says Brian A. Crane, senior member of Gowling Lafleur Henderson LLP's advocacy law group in Ottawa.

"Usually when one is on the losing side, there are a lot of issues that immediately occur that you may say the judge got it wrong on half a dozen points and I think that just to appeal automatically is probably not a good thing."

"Once you give it some careful consideration and assess the chances of success, usually having an outside view of that is important."

Eugene Meehan, head of the Supreme Court practice group at Lang Michener LLP in Ottawa, agrees and says it's key for counsel to take time when deciding to appeal.

"You've got 60 days to put your leave to appeal in [to the SCC] so wait until you and your client have cooled off and aren't so pissed off about losing and ask the question objectively: will your case meet the standard for leave? Is there a solid and substantive basis for the leave to appeal itself?

"You don't want to just win the leave to appeal; you also want to win the appeal. Even if there is a error of law below, is it so substantial to have affected the outcome of the trial or the Court of Appeal decision?" he says.

If you have taken this important step and both counsel and client agree there are grounds for appeal, then the next step involves focusing in on the issues to argue.

"Try to sort out the issues in terms of priority and limit the number of points on appeal, even if you get to the situation where there are a large number of issues that you feel need to be raised before an appellate court, when you get to argue the case you should limit yourself to two or three strong issues if you possibly can," says Crane.

"The more issues you load up your case with, the less importance any of those individually takes. You need to have a focus to your argument and try to make those grounds of appeal legal questions as opposed to factual issues."

Meehan says time and effort should go into drafting a factum for leave to appeal to the Supreme Court of Canada -- although his advice is helpful for other levels of court. It should always have a strong opening and strong conclusion.

"Have an opening paragraph that says that the case is of public importance and gives two or three compelling reasons why," he suggests. "What some counsel do, which is not recommended, is to give what I call a procedural history opening."

The conclusion, he says, should pull it all together and end with a "very strong strategic punch, not simply -- therefore we would ask you to grant the leave to appeal.?"

Filing an affidavit from a third party giving reasons why the case is of public importance can help your case, he says, "ideally from an objective third party or a national association that can legitimately say what the consequences are of the Court of Appeal decision and what the benefits will be to the Canadian legal system to have more certainty in the law."

Technically, a factum should be as close as possible to the standard format that the judges normally see; then it demonstrates a higher level of professionalism and confidence and competence in both you and your case.

While much of the advice provided could be universal in application, Meehan says a winning strategy at the leave to appeal level at the SCC will be completely different from the courts below and also completely different from the full SCC appeal.

"To be successful you have to re-adapt and re-strategize ? change gears, change lanes, maybe even change cars. It's almost worth writing the leave to appeal factum from scratch and ignoring, not even reading, what you wrote in the Court of Appeal below," he says.

"Trade in the van, rent an SUV. It may cost a wee bit more in gas, but ask yourself, if you've litigated the case all this way, is 98-octane supreme better than unleaded regular for the last lap?"

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