The Court of  Appeal

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What is the Nova Scotia Court of Appeal?
The Court of Appeal is the province's highest court.

Where is the Nova Scotia Court of Appeal?
The Court of Appeal is located in the Law Courts Building, 1815 Upper Water Street in Halifax. It sits only in Halifax.

What is the Court of Appeal's function?
The Court of Appeal provides a forum for parties to appeal the outcome of a lower court decision from the Supreme Court (including the Family Division), certain decisions of the Provincial Court or the Family Court, and administrative tribunal decisions. The Appeal Court does not re-try cases, but reviews the record of the trial to ensure that no errors of law or fact were made by the lower court. The Court of Appeal has the authority to dismiss the appeal (confirming the decision of the lower court); allow the appeal and order a new trial; or allow the appeal, but change the order of the lower court. Through its judgments, the Court of Appeal clarifies and develops the law in the Province of Nova Scotia.

What happens in an Appeal Court hearing?
An appeal differs significantly from a trial. Normally three judges sit on an appeal, and most appeals take only two to two and a half hours. There are no witnesses or juries in the Court of Appeal. New evidence (i.e. information not presented during the lower court proceeding) will not be considered by the Court of Appeal except in the rarest circumstances. Before the appeal hearing, the judges are already entirely familiar with the appeal. They have reviewed the complete record of the lower court proceedings (as contained in the appeal book) as well as the written arguments of the appellant and the respondent, as set out in their factums.

To commence the hearing, the Court Clerk calls the Court of Appeal to order. The appellant first addresses the Court setting out his or her legal argument, which is based on the factum that was filed earlier with the Court of Appeal. The respondent then does the same. The judges frequently ask questions as the case is presented. No additional time is allowed for questions from the panel of judges. Therefore parties should plan to speak between 30 and 40 minutes only, to allow time for them to respond to judges' questions. The Court of Appeal may give its decision orally the day the appeal is heard, or it may reserve its decision and issue a written judgement at a later date.

Who are the judges of the Court of Appeal?
The Court of Appeal consists of the Chief Justice of Nova Scotia (who is also the Chief Justice of the Court of Appeal) and seven other judges. Semi-retired (supernumerary) judges may also form part of the Court of Appeal at any given time. Court of Appeal judges do not sit on any other court, and they have no previous involvement with the cases that come before them on appeal.

How do you address judges on the Court of Appeal?
Many judges prefer to be addressed in a gender-neutral fashion. Counsel should consider doing so by using the term “Justice”, followed by the jurist’s last name. The gender-neutral term “Court” is also acceptable, as in: “I would like to direct the Court’s attention to…”. This is particularly useful in appeal hearings where a panel of three or five judges may be presiding.

Unless otherwise directed, it is also acceptable to address a male judge as “My Lord” and a female judge as “My Lady”.

When speaking to a judge outside of the courtroom, the preferred manner of address is “Justice” or “Judge”.

Who are the Court of Appeal staff people and what do they do?
The Court of Appeal's senior staff member is the Registrar of the Court of Appeal, a legally trained civil servant who has overall responsibility for the administration of the Court of Appeal. At present, the Registrar of the Court of Appeal also acts as the Prothonotary of the Supreme Court.

The Registrar is assisted by a Deputy Registrar. The Deputy carries out the day-to-day administration for the Court of Appeal in such areas as scheduling and monitoring the flow of documentation required for appeals.

The Court Clerk assists in organizing case files and documentation. The Court Clerk attends Court of Appeal hearings, calling the Court to order and ensuring that the proceedings are recorded.

No Court of Appeal staff can give members of the public legal advice.

What do people wear in Court?
The Court of Appeal judges, the Court Clerk and lawyers wear black gowns for the hearing of appeal cases. No one gowns for Chambers.

What types of cases does the Court of Appeal deal with?
The Court of Appeal deals with a wide range of civil and criminal cases, averaging about 200 to 250 appeals a year from lower courts and from tribunals. There are more civil than criminal appeals.

Not all appeals go to the Court of Appeal, since various statutes provide for appeals to be heard by other courts - for instance, summary conviction appeals from the Provincial Court are heard by the Supreme Court of Nova Scotia, as are appeals from some administrative tribunals (such as the Residential Tenancies Board).

Can every case be appealed?
The justice system provides for a right of appeal (within set time frames) in most cases. However, the reviewing court generally reviews the earlier decision to determine if the judge made any errors of law or if the judge made an error in applying the law to the facts.

For instance, the Court of Appeal neither re-tries cases nor does it second guess the lower court's decision about the facts of a case. Rather, it reviews the earlier decision to determine if the judge made any errors of law or if the judge made an error in applying the law to the facts.

Who can start an appeal?
Generally, only people who are parties in a case can appeal.

Who are the parties in an appeal?
The party who brings the proceeding to the Court of Appeal is called the appellant. The appellant appeals the decision of a lower court or tribunal.

The party against whom an appeal is brought and who must respond to the appellant's case is called the respondent.

Does it cost anything to appeal a case?
Apart from any legal fees, the filing fee for starting an appeal in the Court of Appeal is in the $200.00 range plus a law stamp fee (about $25.00 + HST). Court filing fees may be waived on the basis of financial need. For exact court costs and fees, go to the COURT COSTS & FEES PAGE >>

As well, the parties are responsible for the significant costs of providing the documentation required by the Court of Appeal.

How do appeals get started?
The appellant must first notify the Court of Appeal and the respondent of the appeal by filing a Notice of Appeal within the appropriate time frame at the Prothonotary's Office in Halifax and paying the required fees.

The Appellant must also file a Notice of Application to appear in Appeal Court Chambers to have a judge set an appeal date and filing date for the appeal book and facta (see below). The Appellant must give notice to the Respondent of the date of the Chambers application. The appellant must also complete the certificate respecting preparation of the appeal book in advance of the Chambers application to set an appeal date.

Is there a time limit on appealing?
Yes. Although some appeals must be taken within ten days, generally the Appellant must appeal within thirty days after the lower court or tribunal gives its decision.

Are there time frames for filing Appeal documents?
Yes, times frames are set out in the CIVIL PROCEDURE RULES >> and by the Appeal Court Chambers judge for the parties to file the various documents required in connection with an appeal.

If an appeal is not "perfected" (that is, if a party does not file the documentation by the dates set), the appeal may be dismissed by the Court. A party with good reason for failing to meet the filing dates may seek an extension of the time allowed for filing documents.

What documents are needed for an appeal?
The appeal process is complex, and many documents must be provided by each party to the Court and to the other party. It is advisable that the parties to an appeal have lawyers prepare the necessary documentation.

The Civil Procedure Rules set out the Court of Appeal's requirements respecting the necessary documentation that must be filed. The Rules include everything from the time frames and the type of documents required to instructions with respect to cover colours, spacing, margins and binding. Samples of many of the required forms are included in the Rules.

Appeals are reviews of lower court decisions so the appeal process is based largely on the parties' written arguments and a review of the material resulting from the earlier court process. The parties must file five copies (all required for distribution to the judges hearing the file and the Court of Appeal's Law Clerk) of the following material at the Prothonotary's Office:

Can the public attend the Court of Appeal?
Yes, Court of Appeal proceedings are open to the public. The media may apply for permission to film Appeal Court hearings on a case by case basis.

What is Appeal Court Chambers?
Every Thursday, one of the Appeal Court judges sits alone to set dates for upcoming appeals or to hear various motions dealing with such matters as bail applications, and any extensions of time requested by a party. This is called Appeal Court Chambers.

Arrangements may be made in advance, in accordance with the Rules, to have uncontested Chambers applications (usually matters to be set down for a hearing date) heard by telephone conference call, normally on Wednesdays.

When does the Appeal Court make its decision in a case?
The Court of Appeal may give its decision orally in Court shortly after the Appellant and the Respondent have presented their cases. The Court will often reserve its decision and issue a written judgment at a later date.

Is there an appeal from the Court of Appeal?
Yes, in some cases an appeal can be taken to the Supreme Court of Canada in Ottawa. In some of the most serious criminal cases, a party has an automatic right to appeal; however, in most cases, permission to appeal must be granted by the Supreme Court of Canada or by the Court of Appeal. Only a few Nova Scotia cases each year are heard by the Supreme Court of Canada.

How can I get more information on the Court of Appeal?
The rules governing appeals to the Nova Scotia Court of Appeal are set out in the CIVIL PROCEDURE RULES >> (Part 18). Rule 90 covers civil appeals and Rule 91, criminal appeals. The JUDICATURE ACT >> sets out the powers and structure of the Court.

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