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Appeal - Motions - General. Grillone (Re)
In Grillone (Re) (Ont CA, 2023) the Court of Appeal considered a respondent appeal motion to lift an automatic stay [under BIA s.195] and/or an order for security of costs for the appeal.
In this quote the court comments on the nature of an appeal, and the role of motions in appeals:[24] An appeal is a completely different litigation creature than a first instance adjudication on the merits. An appeal is not a process designed to create an evidentiary record, save in the small number of cases that involve fresh evidence that meets the stringent requirements of the test in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. Instead, an appeal takes the record created below, subjects it to panel review in accordance with the applicable standards of review, and may result in appellate intervention where a reversible error is identified in the decision below.
[25] Since an appeal essentially involves taking the record created below and packaging it for appellate consideration in the form prescribed in considerable detail by the Rules and the practice directions of this court, resort to motions in most civil appeals is unnecessary and wasteful. Most civil appeals involve only a handful of issues, so disputes about timelines and “packaging” of the record can and should be worked out by the parties through a process of reasonable discussion. Indeed, the rise in civil pre-hearing motions in this court over the past decade has been a most unfortunate development; there is no need for resort to this court to resolve most pre-hearing disagreements. And while appeal management conferences can play a useful role in complex, multi-party appeals, this is not such an appeal.
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