Tipping the balance in the Court of Appeal

• Author: The Honourable Kathryn N. Feldman
• Pages: 247-256

247

g Sring 2005

Tipping the balance in the

Curt f Appeal

THE HONOURABLE KATHRYN N. FELDMAN*

y friend Stephen Grant wanted to know, what speaks to

the judges of the Court of Appeal, what moves them? Two

very important components are written and oral advocacy

and the art of persuasion, which was the topic of my colleague John

Laskin’s extraordinary address to this conference last year. My topic is

the standard of appellate review and the limits on what the Court of

Appeal can do. Is there a way to identify when you have a winning appeal

or at least a potential winner? And when should you advise your clients,

who lost at trial, that the Court of Appeal is not going to be able to help,

even if the result appears unjust to them?

The scope for interference by the Court of Appeal has been circum-

scribed by the Supreme Court of Canada over the last thirty years and

was even more strictly limited two years ago in Housen v. Nikolaisen.1

How many times have you been in the Court of Appeal when the presi-

dent of the court says (hopefully to your opponent): “You know, counsel,

that we cannot retry the case.”

* ’ : This article is the edited text of an address delivered to The Advo-

cates’ Society Fall Convention in Scottsdale, Arizona, on November 21, 2004. The

author wishes to thank her law clerk, Colin Grey, for his assistance in preparing

this article.

1 [2002] 2 S.C.R. 235.