IRVING MITCHELL KALICHMAN

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1 IRVING MITCHELL KALICHMAN MISE EN GARDE Le Barreau de Montréal organise de nombreuses activités et conférences à l'intention de ses membres. Certains conférenciers acceptent gracieusement que le Barreau de Montréal publie leurs textes et présentation sur son site Internet au bénéfice de l'ensemble des avocats. Ces textes et documents reflètent l'état du droit au moment de leur présentation et ils ne font l'objet d'aucune mise à jour, sauf indication contraire. Ils ne dispensent pas les avocats qui s'y réfèrent de la lecture de la législation en vigueur.

2 Appeals under the new CCP Presented by Catherine McKenzie IRVING MITCHELL KALICHMAN LLP

3 Jurisdiction The Court of Appeal has general appeal jurisdiction: Art. 29 CCP: The Court of Appeal is the general appellate court in charge of hearing appeals against appealable judgments of other courts, unless a provision specifies that an appeal is to be made before another court. Concordance: art. 25 old CCP

4 Subject matter jurisdiction Appeals as of right Art. 30(1) CCP: Judgments of the Superior Court and the Court of Quebec that terminate a proceeding, and judgments or orders that pertain to personal integrity, status or capacity, the special rights of the State or contempt of court, may be appealed as of right. Terminate a proceeding or met fin à un instance v. final judgment (art. 26 old CCP) Personal integrity, status & capacity Special rights of the State Contempt of court What does pertain mean? Does this mean, for example, that an inconsequential interlocutory decision in a matter dealing with personal integrity is appealable as of right? Current doctrine seems to say no.

5 Exceptions where leave required Art. 30(2) CCP Where the value of the subject matter in dispute is less than $60,000 (increased from $50,000) interest & additional indemnity count (Art. 30 in fine) Non-contentious matters Judgments dismissing a demand because of its abusive nature Judgments regarding interventions Judicial review or evocation Legal costs awarded Seizures Execution matters

6 Standard for leave Art. 30 in fine: Leave to appeal is granted by a judge of the Court of Appeal if that judge considers that the matter at issue is one that should be submitted to that Court, for example because it involves a question of principle, a new issue or an issue of law that has given rise to conflicting legal decisions. Essentially the same standard as in Art. 26(2) old CCP

7 Interlocutory judgments Art. 31 (1) CCP: A judgment of the Superior Court or the Court of Québec rendered in the course of a proceeding, including during a trial, is appealable as of right if it disallows an objection to evidence based on the duty of discretion of public servants or on professional secrecy. Concordance: art. 29 & 511(2) old CCP Is duty of discretion of public servants wider? Is professional secrecy wider than art. 9 of the Charter?

8 Interlocutory judgments con t Art. 31(2)-(4) CCP: Such a judgment may be appealed with leave of a judge of the Court of Appeal if the judge considers that it determines part of the dispute or causes irremediable prejudice to a party, including if it allows an objection made to evidence. The judgment may be appealed without delay. The appeal does not stay the proceedings unless a judge of the Court of Appeal so orders. If the judgment was rendered in the course of the trial, the appeal does not stay the trial; however, judgment on the merits cannot be rendered nor, if applicable, the evidence concerned heard until the decision on the appeal is rendered. Any other judgment rendered in the course of a trial, except one that allows an object to evidence, may only be challenged on an appeal against the judgment on the merits.

9 Interlocutory judgments con t Contrast with Art. 29 old CCP. Appeal with leave allowed: (1) when it is part decides the issues; (2) when it orders the doing of anything which cannot be remedied by final judgment; or (3) when it unnecessarily delays the trial of the suit However, an interlocutory judgment rendered during trial cannot be appealed immediately and it cannot be put in question except on appeal from the final judgment, unless it disallows an objection to evidence based upon art. 308 of this Code or section 9 of the Charter or unless it allows an objection to evidence.

10 Result? Under the old CCP, interlocutory judgments rendered during trial were essentially unappealable unless they were objections to evidence which were allowed or in exceptional circumstances Now, if the Judge considers that the decision determines in part the dispute or causes irreparable prejudice to a party, it is appealable with leave whether it occurs during trial or not What will this come to mean? Determines in part the dispute is probably similar to in part decides the issues, but irreparable prejudice is a new standard

11 Case Management rulings Art. 32 CCP If relating to the conduct of a proceedings or an incidental application concerning the continuance of a proceeding, the joinder or several of proceedings, the stay of a trial, the splitting of a proceeding or pre-trial discovery cannot appeal But: if a measure or ruling appears unreasonable in light of the guiding principles of procedure, a judge of the Court of Appeal may grant leave to appeal. Unreasonable is this the judicial review standard of reasonableness?

12 Who may appeal? Art. 351 CCP Any party to the case in first instance having an interest in appeal (qui y a intérêt) this is broader that the list in old art. 492 In non-contentious matters, any third person to whom it was notified What does this mean for interveners? Can they file an appeal if neither of the principle parties does? Since the decision in Hendricks that hasn t been possible because they were not considered to have sufficient interest

13 How do you appeal? Art. 352 CCP Is now called a notice of appeal (déclaration d appel) Needs to be served at the Court of Appeal and not the inferior Court Art. 353 CCP content: State the grounds of law or fact appellant intends to argue Is this less demanding than current requirements? Will we see shorter inscriptions? CA will set it out in regulations There is no longer any sanction for failing to file the notice regarding the transcripts which is due within 45 days Will return to delay in art. 353(3) CCP later

14 Formalities of Appeal Art. 356 CCP if not able to provide detailed grounds in notice before the expiry of the time limit maybe ask for permission to file a supplementary statement for serious reasons Art. 354 CCP Also need to notify the appeal to the Superior Court (includes service but not necessary)

15 Interlocutory judgments Art. 357 CCP if leave required, need to file: Application Notice of Appeal Judgment Evidence necessary to decide leave The application is presented without delay and contested orally before an appellate judge If leave is granted: Notice of appeal deemed to have been filed & have 15 days to file notice regarding transcripts If leave is denied: Reasons must be given

16 If leave was not required but you asked for it Art. 357(3) CCP: If leave to appeal was not required and the appeal could have been initiated solely by filing a notice of appeal, the notice of appeal is deemed to have been filed on the date the judge takes note of its filing. According to the Minister, the purpose of these changes is to ensure that if you erroneously thought you needed leave, you don t lose your right of appeal since your notice of appeal will be deemed to be filed that day

17 Consequence of appeal Art. 355 CCP: Stay of execution Exception if provisional execution has been ordered or provided by law (see art. 690 CCP) (2) If the sole object of the appeal is to obtain an increase or a decrease in the amount awarded by the judgment, a judge of the Court of Appeal may, on an application, order the judgment debtor to comply with the judgment up to the uncontested amount

18 Time limits v. Art. 353(3) CCP: 45 days after the date of judgment along with the notice regarding depositions (& art. 356 CCP) Art. 360 CCP: 30 days after the date of notice of the judgment or date it was rendered in court (as oppose to the date of sending the notice old controversy) Art. 361 CCP: 10 days for appealing a judgment that: Lifts an interlocutory injunction Or denies a person s release Confirming or quashing a seizure Art. 363 CCP: time limits are strict but can be relieved for 6 months if (a) good chance in appeal & (b) impossible in fact to act

19 Service & Appearance Art. 358 CCP Needs to be served on Respondents personally & notified to attorney that represented them in first instance (presumption that they have the same lawyer) Must file a representation statement within 10 days If you are not longer representing that person you must advise them, the appellant and the court without delay

20 Incidental appeal Art. 359 CCP: If there is an appeal, other parties can file an incidental appeal The incidental appeal persists even if the other party abandons their appeal Time limit 360 CCP: 10 days after service of the notice or judgment granting leave

21 Surety in Appeal Art. 364 CCP The Court or a judge, on their own initiative or on an application may, for good cause, subject an appeal to the provision of a suretyship to guarantee payment of the appeal costs & of the judgment amount if the judgment is affirmed Is this different than serious reasons from old CCP? Minister says it is, that this is no longer required Also, old caselaw said that there had to be an application in writing for security in appeal Can this now be asked for orally? Under what circumstances can a judge raise of their own initiative

22 Abusive appeal Art. 365 CCP Court can, even on its own initiative, dismiss an appeal if the appeal is abusive Need to make a request within 20 days of receiving notice but cannot be presented until after 30 days have elapsed since its filing (3) inadmissibility of an appeal may be urged at any time According to the Minister, criteria for what is abusive is found in art. 51 CCP

23 Safeguard orders Art. 379 CCP: A judge may order a safeguard order or authorize the correction of a proceeding

24 New evidence Art. 380 CCP: They can authorize it if it is indispensable after giving the parties a chance to make representations Will this mean the same criteria as before? Unavailable etc. Minister says: il suffit que la preuve nouvelle soit considérée comme indispensable sans qu il soit nécessaire, comme auparavant, de démontrer l existence de circonstances exceptionnelles

25 Stays pending leave to appeal to SCC Art. 390 CCP: Judgment is enforceable immediately but can be stayed on appropriate conditions if they are bringing a leave application to the SCC What does appropriate conditions mean? (Art. 522 old CCP)

26 Questions?

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