THE HEARING AND DECISION
CHAPTER TEN
10:1000 OVERVIEW
10:1100 Composition of Appellate Courts
10:1110 Generally
10:1120 Intermediate Appellate Courts
10:1121 Quorum
10:1122 Size and Composition of Panels
10:1123 Death, Illness or Disqualification
10:1130 Supreme Court of Canada
10:2000 EXPEDITING AND ADJOURNING THE HEARING OF AN APPEAL
10:2100 Expediting the Hearing
10:2200 Adjourning the Hearing
10:2210 Premature Appeals
10:2211 Generally
10:2212 Mid-Trial Appeals
10:2220 Adjournments To Ensure Fairness
10:2221 Adjournment Granted
10:2222 Adjournment Denied
10:3000 ADDITIONAL EVIDENCE ON APPEAL
10:3100 Overview
10:3110 Legislative Provisions Permitting Additional Evidence on Appeal
10:3120 Reasons for Limiting Additional Evidence on Appeal
10:3130 Exception: Evidence of Due Process or Jurisdictional Error
10:3131 Due Process Error
10:3132 Non-disclosure and Fraud
10:3133 Jurisdictional Issues
10:3140 Judicial Notice on Appeal
10:3200 The Four Criteria for Admission of Additional Evidence on Appeal
10:3210 Generally
10:3220 Due Diligence
10:3221 Evidence Available at Time of Trial not Generally Admissible
10:3222 Exception: No Lack of Due Diligence
10:3223 Post-Trial Evidence
10:3230 Relevancy
10:3240 Evidence Must be Credible
10:3250 Decisiveness
10:3251 The Test
10:3252 Evidence not Sufficiently Decisive
10:3300 Specific Variations to the Application of the Four Requirements
10:3310 Interlocutory Orders
10:3311 Generally
10:3312 Evidence Admitted
10:3313 Evidence Not Admitted
10:3320 Family Law Appeals
10:3321 Child’s Welfare at Stake
10:3322 Maintenance Orders and Division of Matrimonial Property
10:3330 Assessment of Damages
10:3331 The General Principle
10:3332 Exception: Post Trial Changes that “Falsify” the Assessment
10:3340 Administrative Appeals
10:3350 Constitutional Litigation
10:3400 Tendering Additional Evidence
10:3410 Preliminary Issue: Reopening the Trial
10:3420 Procedural Considerations
10:3421 Generally
10:3422 Timing of the Decision as to Admissibility
10:3430 Application of Specific Legislation
10:3431 Supreme Court of Canada
10:3432 The Federal Court of Appeal
10:3433 British Columbia and the Yukon
10:3434 Alberta, Northwest Territories and Nunavut
10:3435 Saskatchewan
10:3436 Manitoba
10:3437 Ontario
10:3438 New Brunswick
10:3439 Nova Scotia, Prince Edward Island and Newfoundland
10:3500 Use of Fresh Evidence: Remake the Findings or a New Trial?
10:4000 RAISING NEW GROUNDS OF APPEAL
10:4100 Overview
10:4110 Appellate Courts’ Discretion to Permit New Arguments
10:4120 The Competing Factors
10:4121 Not Correcting Error and Procedural Prejudice
10:4122 Creating Binding Precedent
10:4130 Practice Considerations
10:4131 A Formal Motion for Leave to Amend
10:4132 Responding to a New Issue or Argument
10:4133 Raising New Grounds in Support of the Impugned Decision
10:4200 The General Rule
10:4210 The Three Requirements for Permitting a New Ground to be Raised
10:4220 Exception: A Change in the Law Following the Trial
10:4221 Judicial Changes
10:4222 Legislative Changes
10:4300 The General Rule Applied
10:4310 New Argument on Appeal not Permitted
10:4311 Procedural Prejudice
10:4312 Insufficient Evidence in the Record
10:4320 New Argument Permitted
10:4321 Generally
10:4322 Argument or Issue not Entirely New
10:4323 Questions of Law
10:4400 Amendment of Pleadings on Appeal
10:4410 Overview
10:4420 Amendment Allowed
10:4430 Amendment not Allowed
10:5000 JUDGMENTS AND ORDERS
10:5100 Overview
10:5110 Settlement and Entry of Formal Orders
10:5120 Effective Date of Court of Appeal Order
10:5200 Reconsideration and Variation of Orders
10:5210 Generally
10:5220 Leave Required for Reconsideration Prior to Entry of Order
10:5221 Procedure for Obtaining Leave
10:5222 Timeliness
10:5230 Reconsideration in the Supreme Court of Canada
10:5231 Overview
10:5232 Rule 76
10:5240 Reconsideration in the Intermediate Appellate Courts
10:5241 Generally
10:5242 Errors Relating to Participation at the Hearing
10:5243 Decision-Making Error
10:5244 Other “Special” or “Extraordinary” Circumstances
10:5250 Reconsideration and Rehearing Denied
10:5251 Reargument of Appeal
10:5252 Alleged Error of Law
10:5253 Other Circumstances
10:5300 Variation of Orders After Entry
10:5310 Generally
10:5320 The Conventional “Slip Rules” Applied
10:5321 Application Dismissed
10:5322 Order Varied
10:5330 Rule 50 of the British Columbia Court of Appeal Rules
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