Appeals

1. What is an ‘appeal’?

An appeal is a special written application asking to have a higher court determine if errors were made in a decision or order issued by a lower court or in the way the hearing or trial was heard at the lower court. An appeal can be filed if a party believes that the judge who heard their case applied the wrong law to the case or applied the law in the wrong way to the facts of the case. In very rare circumstances, you may be able to argue that the judge made an error in deciding the facts of the case, but this kind of error must be extreme (palpable and overriding).

Only certain kinds of errors can be appealed.

You do not file an appeal simply because you didn’t like the decision that was made. You also do not file an appeal to have another chance to present your case or do a better job of presenting your case.

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2. Is an appeal the same thing as a variation?

No, appeals are not the same thing as variation applications.

An appeal is made when a party believes a judicial error was made. For example, that the wrong law was used to decide the case.

A party can apply for a variation where a material change in circumstances has occurred since the last order was made.

For more information about variations, click here.

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3. Where are appeals filed?

Appeals from Family Court, Supreme Court (Family Division) and Supreme Court (General Division) are filed and heard at the Nova Scotia Court of Appeal at the Law Courts at 1815 Upper Water Street in Halifax. You do not file an appeal with the court that originally made the decision that you are now appealing.

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4. How long do I have to file an appeal?

Most appeals must be filed within 30 days of the original decision or court order. 

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5. How do I start an appeal?

There are particular documents that must be filed to start an appeal, and there are timelines in which this must be done.

Appeals are very difficult legal applications, and there are a lot of rules about the documents that must be filed, as well as the way you present an appeal in court. You will need to prepare a legal brief, called a ‘factum,’ and you will need to know about the law that applies to your case.

You will likely also have to get a transcript prepared of the court proceeding being appealed. This usually involves ordering a CD of the court recordings, and bringing the CD to transcription service to have the transcript prepared. There will be a fee for this. The court does not prepare transcripts for appeals.

For more detailed information on the appeal process, click here.

You may also wish to view the video tutorial for civil appeals, found here

The video and guide for preparing an appeal book can be found here.

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6. Do appeals cost money?

Yes, there are filing costs for starting an appeal. There will also be costs for having the transcript prepared. You may also have to pay to have the other party served.

Remember that appeals are heard in Halifax, so you will have to travel to Halifax to file documents and appear in court.

You may have costs awarded against you if you file an appeal that does not have merit. This is one of the reasons why it is important to get legal advice before filing an appeal.

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7. Do I get to have a new trial when I appeal?

No. Appeals are not an opportunity to have your entire case re-heard or re-tried by the appeal court. Only in very rare cases, where you make a special application, will you be allowed to present new evidence to the appeal court.

When you appear in appeal court, you must speak about the legal errors that you are alleging the judge made when initially hearing your case, using all the information and facts of the initial hearing. You must give legal reasons and make technical legal arguments about the errors you believe were made.

This process is very difficult to do, especially for those who do not have legal training.  Decisions to file an appeal should be made with the help of legal advice. Remember that you may have to pay costs to the other person if the appeal is not successful. 

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8. What might happen after an appeal?

The Court of Appeal may:

  • dismiss the appeal, confirming the order of the lower court
  • agree with the appeal, changing the order of the lower court
  • agree and dismiss parts of the appeal, changing the order of the lower court
  • agree with the appeal, ordering a new trial or hearing

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9. Is there a way to address my appeal without going to a hearing?

The Court of Appeal Mediation Program helps litigants avoid costly and time-consuming courtroom hearings. It is voluntary and is available to those who have launched an appeal in a civil or family dispute.

For more information about this program, click here

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10. How can I get legal advice about appeals?

The Free Legal Clinic provides support and legal advice to people in the Halifax area who are representing themselves in court but have limited or no experience navigating the justice system. This service is available by appointment only, and provides information and advice on civil law matters before the Supreme Court or the Court of Appeal. For more information about this Legal Clinic, click here

The Courts have also launched a similar pilot project in Sydney for people in the Cape Breton area. For information on that free legal clinic, click here

You may also be able to access legal advice through one of the services listed here.

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