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Appeals - Main Orders - Overview

. Overview

This section deals with the guts of CJA 134 ['Powers on Appeal'], the orders (also referred to commonly as 'remedies') that an appeal court can make if the case runs through perfection and argument to it's natural end. These include, usually, the granting or dismissing of the appeal [CJA 134(1)(a)].

. Dismissal

Dismissing an appeal is usually a straightforward matter at the end of the court's written reasons for judgment [eg. "The appeal is dismissed"]. A dismissal normally (except for a 'stay', which must be lifted by the court) re-instates the earlier, appealed order which is already articulated by that lower court or tribunal.

'Dismissal' can also occur in a preliminary (interlocutory) fashion if a motion is made to 'quash' the appeal [see 'Quashing the Appeal', above], or administratively for delay [see 'Dismissal for Delay', above].

. Granting

Granting an appeal however can be much more complex, and it breaks down into three categories:
  • Simple Reversal

    The simplest form of an appeal grant is when the appeal issue is binary by nature, the common form being an appeal about eligibility. Eligibility is usually a yes/no issue - for example, the appellant was denied eligibility for a statutory benefit (eg. ODSP), appeals and then wins on the appeal - then the appeal grant establishes their ODSP eligibility.

  • 'Grant with Terms'

    'Granting with terms' (my term) as an appeal remedy is evident on considering the CJA 134(1)(a) phrasing "make any order or decision that ought to or could have been made by the court or tribunal appealed from". This option provides for a range of remedies - each unique to the facts, law and past procedures of the appeal case.

    In a simple example, a success appeal of a damage lawsuit dismissal at trial would naturally require the court to articulate it's new reasons and order/s setting out the new damage award quantum, interest, disbursements and costs.

  • 'New Trial/Hearing'

    A less used power is that of ordering a new trial (which still involves a 'granting of the appeal') [CJA 134(1)(b)]. This power may only be exercised if "some substantial wrong or miscarriage of justice has occurred" [CJA 134(6)].

    As these provisions apply not only to appeals from court trials, but also to court appeals from tribunal hearings, the general appeal order power of CJA 134(1)(c) ["any other order or decision that is considered just"] applies to order a new tribunal hearing if needed.

    Ordering a new trial (or in the case of a tribunal, a new hearing) involves consideration of judicial efficiency and adequacy of the evidentiary record, and more. Obviously, a new trial/hearing is a last resort by an appeal court - resorted to only if the interests of justice require it.

    If the wrong or miscarriage "affects only part of an order or decision or some of the parties, a new trial may be ordered in respect of only that part or those parties" [CJA 134(7)].

    As well, "(o)n an appeal from an award for damages for personal injury, the court may, if it considers it just, substitute its own assessment of the damages" [CJA 119].
In the cases, the contrast between these last two categories ['granting with articulated terms' and 'new trial/hearing'] is frequently part of an active discussion in the reasons as to which should be ordered. That is, whether to grant with articulated terms (and leave the case complete then) or whether to order a fresh trial or hearing. This contrast is probably the single most frequent issue that makes up the case law on appeal remedies.

The new trial/hearing option is not always a totally 'de novo' re-trial/hearing, as sometimes only a specific legal or damage issue remains outstanding.


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