Julius Melnitzer - A Holistic Framework in Civil Appeals Book

A Holistic Framework in Civil Appeals Book
Review by Julius Melnitzer

"The role of appellate courts is a very hot topic, both in jurisprudence and in the media," says Justice John Evans of the Federal Court of Appeal.

There are a number of reasons for this.

First and foremost, the controversy over the judiciary's role in dealing with Canadian Charter of Rights and Freedoms issues has brought appellate courts to the headlines in the last 25 years.

"There's been a great deal more public litigation around," says Don Brown, QC, a partner emeritus at Blake, Cassels & Graydon LLP.

And quite apart from the Charter, appellate courts have been more forthright in acknowledging their role as lawmakers.

"In the last 10 or 15 years, judges are more inclined to overrule precedent and correct their own mistakes," Brown says. "And they're acknowledging what they're doing instead of resorting to distinguishing previous cases into non-existence."

nsiderably lower on the public radar but of great importance to lawyers is the increasing deference shown to trial judges by appellate courts.

But even as substantive review has narrowed, the courts have been increasingly prone to procedural review.

"Appellate courts are more sensitive to due process, and more willing to intervene if it is lacking," Brown says.

What has happened, in essence, is that a new framework for appellate review has emerged. Unfortunately, a comprehensive overview of this evolution has not until recently been available except by painstaking research of individual cases and articles on the subject.

That it is available goes to the credit of Brown and his recently published two-volume loose-leaf work called Civil Appeals.

"Brown's work takes our adjudicative system and puts it into a holistic framework," says Peter Gall, QC, of Heenan Blaikie LLP. "This is a very learned work that provides understanding and insight and is not just a collection of cases and legal rules."

Evans is of similar mind. "Civil Appeals is not really an academic book but it does provide a theoretical framework that permeates the discussion of individual topics," he says. "There's a fine blend of detail with clear, logical organization that never loses sight of the overall picture."

It's also the first Canadian work of its kind on the subject. And according to Earl Cherniak, QC of Lerners LLP, arguably the dean of Canada's appellate Bar, it's long past due.

"Being an accomplished trial lawyer doesn't translate into being an accomplished appellate lawyer," he says. "When you go to the appeal courts, you have to speak their language. Until Civil Appeals was published, there's never been anything comprehensive to show you how. Now there is."

Brown retired from Blakes 13 years ago – if you can describe 10 years spent working on Civil Appeals as any kind of retirement.

"I started teaching a course on civil appeals and judicial review at the University of Toronto in the '80s and realized that sooner or later someone would have to write a comprehensive book on appellate practice," he says. "After I retired, that someone turned out to be me."

In some respects, Civil Appeals is a companion to Brown's classic work on Judicial Review of Administrative Action in Canada, which he co-authored with Evans. But Civil Appeals also stands on its own, and is divided into four parts.

Part I is called Jurisdiction of Appellate Courts in Canada and its contents include a comprehensive review of the fact and law divide, leave to appeal issues, abuse of powers and remedies available to appellate courts.

Part II is entitled Appeals Procedure and deals with subjects such as stays, security for costs and interim relief. It closes with a discussion of the hearing, including issues such as new evidence, new arguments and reconsideration.

The contents of Part III, Ensuring Due Process, embrace due process in the context of bias, adducing evidence, the right to make and limit submissions, and re-opening trials to hear additional evidence. There's a section on the decision-making process, which deals with fact-finding, burden of proof and inadequate reasons. Brown also discusses appellate review of judge and jury trials in considerable detail.

Part IV, Appellate Review for Error on the Merits, includes a comprehensive study of standards of appellate review, including standards for jury trial review. Also included are sections on specific standards of review for damages awards, for judicial officers like taxing masters and registrars in bankruptcy, and for the exercise of judicial discretion.

This is clearly a practitioner's book, but it is also fastidiously footnoted. Overall, it is a standard in itself, one by which factums and arguments will be judged. Appellate practitioners without it will be at a disadvantage: it shouldn't be long before reference to Civil Appeals becomes commonplace in appellate judgments at all levels of court.
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Julius Melnitzer is a freelance legal affairs writer.
May 13, 2009