THE APPELLATE PROCESS EXPLAINED: Book Review By Earl A. Cherniak, Q.C., LSM

THE APPELLATE PROCESS EXPLAINED: Book Review By Earl A. Cherniak, Q.C., LSM

Donald J. M. Brown, Q.C., Civil Appeals Toronto: Canvasback Publishing, 2009

Given that civil appeals are so central to the arsenal of every civil litigator and his or her clients and that the work of the provincial appellate courts and the Supreme Court of Canada is so important to our jurisprudence, the wonder is that there has never been a comprehensive treatise on the appeal process and the extensive jurisprudence that surrounds it. Now there is.

All of us who ply our trade in the appellate courts will be indebted to Don Brown. This is a monumental work, as was its companion text Judicial Review of Administrative Action in Canada, by Donald Brown and John Evans. This new work covers comprehensively the jurisdiction of the appellate courts, appellate procedure, the role of appellate courts in the supervision of trials and the trial process, and appellate review of the merits, including the several standards of appellate review, an area of law that bedevils the jurisprudence to this day.

The first chapter, an overview of the appellate process, is a must read for any would-be appellate lawyer. It is an introduction to the arcane world of civil appeals and the jurisprudence. Appellate lawyers who gain the trust and confidence of appellate courts learn to talk their language, a very different one from that spoken at trial, and one that is different again in the Supreme Court of Canada. This chapter outlines, inter alia, the role and function of the appellate courts, particularly the Supreme Court of Canada, due process, correcting substantive error and the law making function of the appellate courts.

The rest of the book is divided into four parts: jurisdiction, appellate procedures, ensuring due process and appellate review for error on the merits.

Each section has several chapters that fully treat the many topics and the variations in the procedure and powers of the several appellate courts, including the superior, federal and provincial courts and the Supreme Court of Canada. The thorny subjects of leave to appeal, interventions, what are questions of mixed fact and law, appeals from interlocutory orders and appeals from arbitration awards are among the many areas covered.

While this is very much a practitioner's book, and richly foot-noted, it is noteworthy for its scholarship as well. It is written to be useful for practitioners and the judiciary and as a research tool. I tested it against the issues in appeals that I am currently preparing, and the book was not found wanting. Many chapters group the cases cited on the basis of which way the point at issue was decided. Typical of the comprehensive way in which the jurisprudence is covered are the sections on motions to quash, additional evidence on appeal and raising new grounds of appeal. The section on reasonable apprehension of bias will be particularly helpful when that difficult subject arises.

The work is published in two-volume loose-leaf form. It includes a very useful table of contents, an index and a list of the cases cited to facilitate easy research. It will be updated regularly.

All in all, this is a "must have" book for any practitioner of the black art of appellate advocacy, especially since it is likely to be in the library of every appellate judge in the country.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Earl A. Cherniak, Q.C., LSM, is a partner in Lerners LLP, Toronto

Published in The Advocates' Journal, Summer 2009