Appeals
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 877-898 |
C
H A P T E R
T
H ! R T
Y
-
O
N
E
Appeals
A.
GENERAL
1)
Appeals
within
the
Province
An
appeal
in a
defamation lawsuit
from
a
trial-level superior court
to a
provincial appellate court
is
governed
by the
general
law
contained
in
provincial statutes
and
rules
of
court.
No
province
has
legislated special
laws
for
appeals
in
defamation cases.
The
statutes
and
rules
differ
from
province
to
province.
A
defamation lit-
igant should
therefore
be
alert
to
identify
and
diarize relevant limitation
periods peculiar
to the
jurisdiction
in
which
the
appeal will take
place.
A
defamation litigant
has a
right
of
appeal
to the
provincial appellate
court
from
a
final
order
of the
trial court.
Brown
v.
Cole
(1998),
114
B.C.A.C.
Southin
J.A.
for
the
Court
at
para.
50
(C.A.);
leave
to
appeal
to
S.C.C.
denied, [1998]
S.C.C.A.
No.
614.
Normally,
the
court
of
appeal rules require
the
parties
to
submit written
argument (called
a
"factum")
summarizing
the
facts
and law to be
argued
on
the
appeal. Most provincial appeal courts
sit as a
panel
of
three
to
hear
an
appeal.
The
parties
are
usually entitled
to
present oral argument although
appeal courts
may set
strict time limits
for the
hearing.
In
British Columbia,
the
appeal court
may sit as a
panel
of
five
if a
party intends
to ask the
court
to
overrule
a
prior decision
on a
point
of law or if
such
a
course
is
warrant-
ed by the
significance
of the
issues.
There
is a
significant distinction between
an
appeal based
on an
error
of
law and an
appeal
based
on an
error
of
fact.
In the
case
of an
error
of
law,
877
878
CANADIAN
LIBEL
AND
SLANDER ACTIONS
the
standard
of
review
on
appeal
is
correctness. Nevertheless, even
if the
lower
court
has
erred
in
law,
the
court
of
appeal must still determine whether
the
error
of law has
affected
the
result
so as to
merit overturning
or
varying
the
lower courts verdict.
On
appeal
on
facts
alone
the
standard
of
review
is
much
narrower. Gen-
erally,
in the
absence
of a
palpable
and
overriding error
on the
part
of the
trial
judge which
affected
her
assessment
of the
facts,
the
findings
of
fact
at
trial
must
be
accepted
by the
appellate court.
A
trial
judge
is in a
privileged
position
in
particular
on
issues
of
credibility where
the
demeanour
of a
wit-
ness
may be of
critical importance.
Ross
v. New
Brunswick
Teachers'
Association
(2001),
201
D.L.R.
(4th)
75 per
Daigle
C.J.N.B.
(Turnbull
and
Larlee JJ.A.
concurring)
at
para.
44
(N.B.C.A.).
Even
when credibility
of a
witness
is not at
issue, reasons
of
policy sug-
gest deference
to the
trial judge
to
ensure that
the
autonomy
and
integrity
of
the
trial process
is
preserved.
Ross
v. New
Brunswick
Teachers'
Association,
ibid.
In the
absence
of a
palpable
and
overriding error,
it is not the
function
of
the
appellate court
to
substitute
its
assessment
on the
balance
of
proba-
bilities
for the
findings
of
fact
made
by the
judge
who
presided
at
trial.
Stein
v. The
Kathy
K,
802,
per
Ritchie
J. for the
Court
at
808.
Lewis
v.
Todd,
694,
per
Dickson
J. for the
Court
at
700.
Beaudoin-Daigneault
v.
Richard,
Lamer
J. at 11.
Royal
Bank
of
Canada
v.
First Pioneer
Inv.
Ltd.,
125,
per
Wil-
son J. for the
Court
at
131.
Ontario (Attorney General)
v.
Bear Island Foundation,
570,
per
the
Court
at
para.
5.
Lapointe
v.
Hopital
Le
Gardeur,
351,
per
LHeureux-Dube
J. for
the
Court
at
358-59.
Hodgkinson
v.
Simms,
377,
per La
Forest, LHeureux-Dube,
and
Gonthier
JJ. at
425-26.
Schwartz
v.
Canada,
paras.
32-35.
Quebec
(Public
Curator)
v.
Syndicat national
des
employes
d
I'hopital
St
Ferdinand,
211,
per
LHeureux-Dube
for the
Court
at
para.
46.
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