REVIEW OF CIVIL APPEALS BY PETER A. GALL, Q.C.

CIVIL APPEALS Book Review by Peter A. Gall, Q.C.

It seems surprising that until now nobody had produced a comprehensive treatise of national scope on the law of appeals in Canada, but finally somebody has. It was a long time in the making, and it was well worth the wait.

Donald J. M. Brown, Q.C., renowned legal author, appellate and administrative lawyer, and partner emeritus at Blake Cassels and Graydon LLP, has once again produced a work of art that will undoubtedly become a staple in the libraries of all appellate advocates in the country, in his new book, Civil Appeals. Mr. Brown has single-handedly done for civil appellate practice what he and David Beatty did for labour arbitration in Canadian Labour Arbitration, and what he and now-Federal Court of Appeal Justice John Evans did for judicial review in Judicial Review of Administrative Action in Canada. At last, Canadian lawyers have the benefit of what surely will be viewed as the "bible" of appellate practice across the country.

The body of law governing civil appeals is vast, and increasingly this is becoming a specialty area of practice. Traditionally, appellate work was the work of litigators who focus on trial-level litigation, a practice requiring an entirely different skill set. Appeals require a different set of advocacy skills, an appreciation of the statutory origin of the right of appeal. Before now, it was difficult to gain this knowledge quickly and efficiently as there existed no one central national resource – the legal principles are scattered across a vast body of jurisprudence in all areas of law. Civil Appeals is a significant publication that fills this gap in the Canadian legal literature.

Civil Appeals is a 2-volume loose-leaf binder set published by Canvasback Publishing in a style very similar to Judicial Review of Administrative Action in Canada. The first of its kind in Canada, it is a comprehensive in-depth presentation of the substantive and procedural law governing appeals of all types, before all appellate-level courts in Canada (with the exception of Quebec), including provincial appeal courts, the Federal Court of Appeal, and the Supreme Court of Canada. Some excellent texts already exist about specific appellate advocacy skills, procedure, standards of review, and practice before particular courts. There are also some excellent provincially-based works covering appellate law and procedure in particular provinces, such as Holly Brinton's valuable Civil Appeal Handbook in British Columbia. Don Brown's text completes the picture as the first comprehensive learned treatise that has a national scope. It covers substantive law and procedure governing appeals from trial courts, as well as appeals of administrative decision-makers, both federally and provincially.

Quite learned and containing a thorough review of the case law from across the country, this work can be viewed at once as a treatise, a practice manual, and an encyclopedic reference tool. It is far more valuable than a mere list of topics and cases; while each topic is dealt with in a beautifully concise manner, Mr. Brown's analysis and presentation of the case law is thorough and sophisticated. He has delved deeply into the rationale behind the legal rules and principles governing appeals, allowing the reader to gain an understanding of the policy considerations underpinning the law.

The book is fantastically well-organized. The chapters are tabbed for quick and easy access. The text is visually appealing and accessible, thanks to short paragraphs and numerous headings, making this otherwise weighty topic quite easy to navigate and digest. It contains a superb Table of Contents (60 pages long) and an excellent Index. Its 2 volumes are a bit deceptive; the text is not all that long. Most of the first binder is occupied by the Table of Contents, the Table of Cases and the Tables of Statutes and Rules. The Table of Cases is a whopping 749 pages long – a testament to the thoroughness of the author's research and the breadth of his summary of the relevant case law. The text itself is set out in 16 clear concise chapters covering the law of appeals from start to finish.

The book is divided into an introductory overview chapter (Chapter 1, "Overview") followed by four parts – Part I: Jurisdiction of Appellate Courts in Canada, Part II: Appellate Procedures, Part III: Ensuring Due Process, and Part IV: Appellate Review of Error on the Merits. It is written in numbered-section (and subsection) form, approximating numbered paragraphs. Most of the sections are only one paragraph long. It is heavily footnoted; footnotes contain references to the case law and occasionally, legislation. In the footnotes, names of cases that the author feels are leading cases are bolded, making it very easy to spot and distinguish leading authorities from the rest.

For the most part, this text will be an invaluable reference tool to which practitioners and members of the judiciary can turn to research discrete issues, by going straight to the applicable topic using the Table of Contents or the Index. But I would encourage practitioners and judges to read the book in its entirety. It is an excellent read – learned, academic, and illuminative of the rationale and policy considerations underlying the law, yet brilliantly clear, concise and to-the-point.

Even if the intent is to use the book strictly as a reference tool and not to read it in its entirety, the initial "Overview" chapter (Chapter 1) at the very least is a must-read, especially for beginning appellate advocates. It provides a simple, grounded and thoroughly excellent overview of the basics including some fundamental facts that may at times be forgotten by lawyers when buried in the area of law in which their particular cases are steeped (basics worthy of remembering, such as the fundamental characteristics of the adversarial system, the principle of stare decisis, various courts' degrees of comfort in overruling past decisions, and the fact that the right of appeal is neither a constitutionally-granted right nor a general right per se). A sober reminder and appreciation of these basics, and of the rationales behind the rules, is necessary for a full understanding of the law of appeals, and to maximize the chances of a successful appeal. As Mr. Brown states from the outset:

A society that claims to be governed by the Rule of law must have a mechanism for For resolving disputes as to the application of the law. It need not be adjudication. It could be mediation, negotiation or some other method of dispute resolution. How- ever, in most, if not all Western democracies, adjudication has been adopted and Institutionalized into a system of agencies and courts for that purpose.

… To meet the essential requirement that there be a process of final dispute-resolution, Only one decision is necessary. Provision for an appeal from the initial decision is Not required. Rather, a right of appeal is no more than a refinement of the public judicial system, albeit a very common one.

In the overview chapter, the author reviews the three fundamental functions of appellate courts, which are stated to be: (1) supervision of the process of adjudication (ensuring due process), (2) correcting substantive error, and (3) superintendence of the jurisprudence (the law-making function). He surveys the basic characteristics of the adversarial adjudicative process and provides a brief summary of the various errors in the conduct of a trial that may warrant appellate intervention (explored in detail in Part III). Regarding the second function, correcting substantive error (which is explored in detail in Part IV), he reminds us that adjudicative decision-making is a three-step process (reiterating the Supreme Court of Canada's tripartite analysis of the adjudicative process in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, and Housen v. Nikolaisen, 2002 SCC 33. ("Housen")): (1) fact-identification, (2) law-declaration, and (3) applying the law to the facts. He provides a concise summary of the standards of review applicable to errors of fact-finding, errors of law, and mixed errors of fact and law. His explanation of the third function of appellate courts, the law-making function, is equally useful and includes a discussion about various courts' (provincial appeal courts, the Federal Court of Appeal and the Supreme Court of Canada) practices with respect to overruling past decisions.

In the remaining chapters, he delves deeply and comprehensively into all of these issues, helping the reader to understand the rationale and policy underpinning the law throughout the text. Part I (chapters 2 through 6) is about jurisdiction. Chapter 2 is about jurisdiction generally, and includes particulars about the Supreme Court of Canada, the Federal Court of Appeal and the provincial appeal courts. There is no constitutional right of appeal, no Charter guarantee of appeal, and no common-law general principle that all decisions are appealable. Rights of appeal are a creature of statute. They can therefore be defined, limited or even precluded altogether, by a legislature. Chapter 3 is about legislative (statutory) limitations on the right of appeal, and it provides an excellent in-depth examination of what are considered questions of law and questions of mixed fact and law. Anyone who has ever been confused about the distinction, and the law regarding extricating questions of law from mixed fact and law questions, will benefit greatly from these sections. Chapter 4 is a very thorough analysis (91 pages long) of the topic of leave to appeal. Chapter 5 is about discretionary bars to appeals, that is, when courts may decline to hear an appeal despite the existence of a statutory right of appeal. Chapter 6 is about appellate courts' remedial powers, and costs.

Part II (chapters 7 through 10) covers appellate procedure from start to finish, from commencement of an appeal (chapter 7), to interlocutory motions for relief (chapter 8), perfection of the appeal (chapter 9), dismissal and abandonment (chapter 9) and the hearing and final decision (chapter 10). The section about perfecting the appeal, which the author defines as the process of preparing the written materials for the appellate court (the records, appeal books, books of authorities and written arguments) provides detailed and concise summaries of the requirements and court rules relating to all of the materials that must be filed in the Supreme Court of Canada, the Federal Court of Appeal, and in each of the provinces and territories (except for Quebec). This includes the precise requirements and rules about how factums (or memoranda of fact and law, as they are called in the Federal Court) must be presented. The section does not teach the art of factum-writing, however. Neither does chapter 10 teach appellate courtroom advocacy skills. There are already many other books that accomplish these purposes. Chapter 10 covers the law governing the appeal hearing and decision-making process, and includes an in-depth look at evidentiary issues.

Part III (chapters 11 through 13), entitled "Ensuring Due Process" is about review of a decision for procedural error. Chapter 11 is about bias and independence of lower-court judges and provides an excellent review of the case law in this area. Chapter 12 is about review of the conduct of the trial itself – which chapter, incidentally, would be very useful for trial lawyers as well as appellate lawyers, because it contains a list (and explanation of each) of the various errors that can occur during a trial which may form grounds for appeal. Chapter 13 deals with appellate review of the decision-making process and contain an excellent summary of the case law regarding various errors in all three stages of decision-making (errors in the fact-finding process, errors in the law-declaring process, and errors in the process of applying the law to the facts).

Part IV (chapters 14 through16) is about substantive review of a decision on the merits. An entire chapter is devoted to standards of review (chapter 14), which includes a discussion of the relatively recent Supreme Court of Canada decisions in Housen (supra) and H.L. v. Canada (Attorney General). [2005] 1 S.C.R. 401 regarding errors of fact. Generally, errors in the fact-finding process are subject to the standard of "reasonableness" or "palpable and overriding error" (a term that the court in H.L. determined was merely a refined way of saying "reasonableness"), and errors in law are subject to the standard of "correctness". Errors of mixed fact and law are more complicated and require the court to dissect and classify the error(s), and to select the appropriate standard. Chapter 14 provides a very useful summary of the law regarding the standard of review of questions of mixed fact and law. This chapter also contains sections about jury verdicts, the standards of review in second appeals, and appeals from judicial review of administrative actions. Chapters 15 and 16 pertain to standards of review in very specific cases. Chapter 15 covers damage awards and discretionary decisions. Chapter 16 addresses the review of decisions of Masters and other officers, and small claims appeals.

I absolutely love this book. Although I generally feel passionate about law and appellate advocacy in particular, it is admittedly rare that when reading a legal treatise, I'll have trouble putting it down. I had trouble putting this one down, in part because of the excellence of the writing which is academic but wonderfully clear and concise, in part because the quality of thoroughness of the research breeds confidence that this is a reliable and definitive statement of the law, and in part because it is exciting that the law governing appeals across Canada has finally been consolidated into one valuable and reliable resource.

My only complaint is that the book does not contain tabs for each part (there are tabs for each chapter, but the only way one knows that the book is divided into parts is by reading the preface and the table of contents). This would add clarity for the reader about the text's organization and about where to turn for what topic.

In his preface, Don Brown regrets the lack of a co-author, stating that having had the experience of working with David Beatty and John Evans in his previous works he realizes "the substantial betterment that results from two minds rather than one". It is true, generally, that in major projects of this kind, two minds are better than one. But it is hard to imagine how any team of two or more could have done a better job than this at consolidating and presenting the law of civil appeals in Canada. Our congratulations and our thanks go out to Don Brown for providing the profession with this invaluable resource.

- - - - -
Peter A. Gall, Q.C.
Heenan Blaikie LLP (Vancouver, B.C.)
Published in March 2010 issue of The Advocate (B.C.)