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Appeals - Practice. Sun v. Canada (Attorney General)
In Sun v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal made the point that after an interlocutory order is dismissed, the correct procedure is to seek to appeal that decision, not to repeat the request anew in the context of a separate appeal - which the court referred to as a 'collateral attack':[7] The appellant submits that the Federal Court erred in refusing to admit certain additional evidence she offered that was not before the Agency when it made its decision. In submissions before us, the appellant referred to some new evidence. Among other things, the appellant pointed us to a revised income tax return that she filed after the Agency’s decision.
[8] We cannot consider this submission or the new evidence. This is because the Federal Court refused to admit the evidence by way of an interlocutory Order dated September 1, 2023. If dissatisfied with the Order, the appellant had to appeal it. She did not. As a result the Order is final and cannot be collaterally attacked in this separate appeal. . R. v. R.S.
In R. v. R.S. (Ont CA, 2024) the Ontario Court of Appeal illustrates yet again that appeal issues, although advanced in the factum, risk not being considered unless raised overtly in oral argument:[26] The appeal against conviction is dismissed. While the notice of appeal referred to other grounds of appeal of the conviction and an appeal against sentence, those were not pursued before us. . R. v. Dautruche
In R. v. Dautruche (Ont CA, 2024) the Ontario Court of Appeal illustrates what I think is an unfortunate common practice of appeal courts:C. Disposition
[27] For these reasons, the conviction appeal is dismissed. Although the appellant stated in his Notice of Appeal that he was also seeking leave to appeal sentence, the sentence appeal was not raised in his factum or addressed by his counsel at the hearing, from which we infer that he did not intend to pursue it. Leave to appeal sentence is accordingly denied. . Robertson v. Ontario
In Robertson v. Ontario (Ont CA, 2023) the Court of Appeal considered a joint submission by the parties on a class action certification appeal (with cross-appeal) - here where the parties agreed on the size of facta and compendium, and the time length of oral submissions:[6] I regard appellate advocacy as containing two components: (i) first, educating an appeal panel about a case; and then (ii) persuading the appeal panel to one’s client point of view on the various grounds of appeal.
[7] The main forensic device by which an advocate educates and persuades appeal judges about a case is the written factum, which provides an intelligible pathway through the associated appeal record. A factum affords counsel the opportunity to undertake an unhurried, comprehensive education of the judges in the salient facts of the case, the relevant principles of law (which may or may not be contested), the application of those principles to the facts and – most importantly – an assessment of whether the judge below erred in making factual findings, selecting legal principles or applying legal principles to the facts. As well, the factum contains a strong persuasive component, which builds on the educational foundation undertaken in its earlier parts.
[8] Oral argument proceeds in front of a panel who already have spent time educating themselves about the issues on the appeal and a party’s “pitch” on each issue through their study of the written factum and the associated appeal record. Based on that process of pre-hearing study, the judges on the panel will have formed views about the case, either identifying issues raised by the appeal materials on which they intend to seek clarification from counsel at the hearing or regarding the merits of the appeal as a whole. Given that pre-hearing study by a panel, the goal of effective oral advocacy is to engage the panel in rational persuasion, primarily by clarifying and satisfying any reservations that the judges may hold about aspects of the positions advanced by counsel’s client regarding the decision below.
[9] Since the advocate’s task of oral persuasion takes place after their earlier task of educating and attempting to persuade a panel through the written factum and appeal record, oral persuasion should consume less time than written education and persuasion. Accordingly, on a significant, law-intensive appeal such as this one, I usually see merit in allowing parties to file factums that exceed the standard 30-page limit on the expectation that permitting longer factums should result in the quid-pro-quo of a shorter oral hearing.
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