Show Notes:

N/A

Lecture Slides:

Welcome to YouCounsel.

If you have received an unfavorable decision from a court, tribunal or another administrative public body and you want to appeal that decision, you come to this complicated world of appellate review. The appellate review world is complicated because the procedure for the appellate review is complex and many experienced lawyers cannot agree on what the correct process is and sometimes many judges cannot agree on what the correct process should be with respect to a specific appeal. In this lecture we will try to explain broadly what this appellate review process is and give you a general understanding so that you can start the process of doing your own research with respect to the specific issue that you may be dealing with and you wish to appeal that particular decision.

We begin with a disclaimer that this lecture is only for educational purposes and it provides you a very broad overview of the law relating to the process of appellate review. If you have any specific questions regarding your own issues you should contact a lawyer or a paralegal or the Law Society of Ontario for a referral.

1st and foremost I want to explain to you that there is a significant constraint on the appellate review process and this constraint is: “an appellate review is a review of error not a review by rehearing”.  This is important to understand because many people have this misconception that if they are appealing a decision, it somehow amounts to a re-hearing of the entire case/a retrial or another trial or reconsideration of the entire decision by an appellate body.  That is not the case.  The most important thing that you want to understand is that when you are appealing a decision you are basically telling the appellate body that the lower court judge or the decision-maker has actually made an error.   You have to explain that error.  On that basis the appellate court will decide whether that error was made and whether that error requires that the decision be set aside or overturned.

The scope of the appellate review is very narrow and this is covered under the topic of standard of review.  I will do a separate lecture on “standard of review” because that is another complicated area of law.  We will get into the details of how a court reviews a decision and what is the criteria in overturning or setting aside a decision.  For now what you want to understand is that when you are asking an appellate body to review a decision, the appellate body is starting with the primary assumption that the decision made by the decision-maker was correct.  Then the burden is on you to show how that decision was incorrect and then what kind of remedies you may be entitled to.  So it is not really a re-review of the hearing; it is not another trial—it is simply a review on very, very narrow grounds—the decision that has already been made.

We will talk about appeal versus judicial review. These are two terms. These are not two different names for the same process.  These are complementary but different processes.  They have different requirements that you should follow.  The 1st question that should come to your mind is whether the decision that you are going to challenge or you wish to challenge—is it subject to a judicial review,or whether you may be able to appeal that?  

In most cases you are appealing a decision where the decision was made by a court or in another administrative tribunal. For example, you had a case in small claims court in Ontario. You received an unfavorable decision in that case. Your ability to challenge that decision would be by way of an appeal and not by way of a judicial review.  In another example, if you have faced a decision before a human rights tribunal, that is unfavorable, then you do not have the right to appeal that.  You will have the ability to seek or apply for judicial review. 

Appeals usually deal with the decisions of the court or a tribunal’s decision whereas judicial review mostly deals with the decisions of administrative tribunals or public.  Some administrative tribunals may provide in their legislation that you may have a right to appeal, while other administrative tribunals, in their relevant statute may provide that you may be able to apply for a judicial review. We will talk about how to figure out whether a specific decision of an administrative tribunal requires a judicial review.  With respect to public bodies, public bodies could be in public institutions for example, hospitals or universities which are considered public bodies.  For their decisions (if you choose or if you wish to challenge a decision of a hospital or a university) you may be able to challenge that decision by way of a judicial review. It will not be done through an appeal process.

For you to determine whether your specific case requires following the appeals process or judicial review, you must review the relevant legislation and determine what is the appropriate process in the circumstances of your case.  

Let me give you some examples of cases for judicial review. Let’s say you are facing a decision of the Landlord and Tenant Board which was unfair.  You were either a tenant or a landlord in the specific dispute and you received an unfavorable decision. The question for you is whether you can appeal that decision or you will have to ask for judicial review and the answer lies in Section 210(1) of the Residential Tenancies Act, which basically provides that an order of the board is subject to an appeal. You can make this appeal to the Divisional Court within 30 days. The appeal is limited only on a question of law.  This part about the grounds for appeal being question of law is subject to the “standard of review” that I talked about.  We will discuss that in a separate lecture because again that’s another complicated area of law with respect to the criteria that the appellate court will apply (in this case, the Divisional Court), in determining whether it can make a decision on the specific appeal that you have submitted to that court.

Another example: In case of a human rights application, you face a decision of the Human Rights Tribunal in Ontario which is unfavorable to you and you will like to challenge that decision. Can you appeal that decision? Or apply for a judicial review?  The answer lies in Section 45.8 of the Human Rights Code, which states that the Tribunal’s decision is final and is not subject to appeal. Your only option with respect to the Human Rights Tribunal’s decision is to apply for a judicial review.  That decision can only be altered or set aside if it is considered “patently unreasonable”.  This wording “patently unreasonable” relates to the “standard of review” that the appellate court will apply in making a decision on your appeal.  

As I mentioned you will have to look at the relevant legislation in determining whether your specific issue requires a judicial review or the appeal process. I have provided some relevant legislations that may be helpful to you.

First of all you will have to find out what is the most relevant legislation that is dealing with the subject matter of the underlying issue that you have. For example, if it was a human rights application, then your relevant legislation is the Human Rights Code.  If it was a landlord and tenant dispute, then the Residential Tenancies Act may apply. If it’s workplace safety insurance issue, then you’re dealing with the Workplace Safety Insurance Act.  There are other legislations that are dealing with certain specific matters.  You will have to determine what legislation and what statute specifically deal with your issue.

Second, if any your issues are not related to a specific statute, it may just relate to common law—in which case it will not be subject to a statutory provision for an appellate or judicial review process.  But if there is a statute that is relevant, then you must review that legislation to understand what does the legislation say about your ability to judicially review the case or appeal.

For judicial review in Ontario you would like to review the Judicial Review Procedure Act. As the name implies, this legislation explains various processes for applying for a judicial review and the procedure that needs to be followed. Another important legislation that you should review is called Statutory Powers Procedure Act. For appeals you would like to look at the Courts of Justice Act, the Rules of Civil Procedure and Practice Direction of the specific appellate court where you are applying for the appeal.

• Legislation relating the subject matter of the underlying issue: For example, Human Rights Code
• For Judicial Review:
• Judicial Review Procedure Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-j1/latest/rso-1990-c-j1.html
• Statutory Powers Procedure Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-s22/latest/rso-1990-c-s22.html
• For Appeals:
• Courts of Justice Act: https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/
• Rules of Civil Procedure: https://www.canlii.org/en/on/laws/regu/rro-1990-reg-194/latest/
• Practice Directions – e.g.: Court of Appeal for Ontario Practice Direction: http://www.ontariocourts.ca/coa/en/info/civfam/civil.htm#3

I’ve given an example of the Court of Appeal for Ontario—Practice Direction, which can be found on these links.  I have provided the names of some of the legislations that will be helpful for you in determining whether your case warrants a judicial review application or whether you may be able to apply for appeals.

Once you have determined what your case is, you shall proceed with judicial review or an appeal you will have to now deal with further complicated matters about what is the procedure for appeal? And, what is the procedure for judicial review?—which we will try to cover in separate lectures. I’m hoping to provide first a lecture on the appeal process in courts, followed by the judicial review process.

All in all, what you want to understand is that the appellate process is quite complicated procedurally.  You must carefully review the legislation to understand what process applies in your case. You usually have very limited time with respect to the appeal and judicial review process—which is sometimes as less as 15 days from the day that the decision (the underlying decision) was issued.

If you don’t understand any of these legislations, it may be worthwhile to talk to a legal professional so that at least you can choose the right mechanism through which you should apply for your review of the decision that you challenge.

Thank-you for watching and in the next lectures I will try to cover the topics of the procedure for the appellate review in courts and also the standard of review.