Canada: Framing A More Appealing Notice

You fought the good fight, but lost. Clearly, a serious error was made—and not by you. Now that you have decided to appeal, your first task is to pick up the pen and give notice of your intention to the other side and to the Court, explaining the grounds for your position. In the case of an appeal from an order of a prothonotary, a notice of motion serves this purpose. In the case of an appeal from the Federal Court, a notice of appeal does the job. At their lowest, these notices simply serve as placeholders for your written and oral arguments. At their highest, they assist in crystallizing your analysis at an early stage and, more importantly, can persuade the Court—and possibly your opponent—on the merits. The appellant, as the losing party, should be reluctant to squander this opportunity.

Meeting the prescribed formalities of the notice is necessary, but will not make your notice persuasive. You will succeed in elevating the perfunctory placeholder to persuasive written advocacy if you select your grounds thoughtfully, provide just enough factual context to bring your selected grounds to life and cast the errors in a way that makes resolution in your favour appear irresistible.

A. MEETING THE FORMALITIES

The Federal Courts Act and the Federal Courts Rules prescribe the form and content of notices required to avoid unnecessary complications and possible forfeiture of appeal rights.

The Notice of Motion for Appeal from a Prothonotary

Appeals from an order of a prothonotary proceed by motion to a judge of the Federal Court (Rule 51). The notice must be served and filed within ten days after the day on which the order under appeal was made and at least four days before the day fixed for the hearing of the motion. The motion to appeal from the order of a prothonotary is otherwise governed by Part 7 of the Rules.

The form of the notice of motion is prescribed by Rule 359, which requires that the notice be prepared in Form 359 and contain the following:

1. in respect of a motion other than one made [in writing] under rule 369, the time, place and estimated duration of the hearing of the motion;

1. (b) the relief sought;
2. the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on; and
3. a list of the documents or other material to be used at the hearing of the motion.

The Notice of Appeal to the Federal Court of Appeal

Section 27(2) of the Federal Courts Act provides that an appeal from the Federal Court shall be brought by filing a notice of appeal in the Registry of the Federal Court of Appeal:

1. in the case of an interlocutory judgment, within 10 days after the pronouncement of the judgment or within any further time that a judge of the Federal Court of Appeal may fix or allow before or after the end of those 10 days; and
2. in any other case, within 30 days, not including any days in July and August, after the pronouncement of the judgment or determination appealed from or within any further time that a judge of the Federal Court of Appeal may fix or allow before or after the end of those 30 days.

All parties directly affected by the appeal are to be served without delay (s. 27(3)).

The form of the notice is prescribed by Rule 337, which requires that a notice of appeal be prepared in Form 337 and contain the following:

1. the name of the court to which the appeal is taken;
2. the names of the parties;
3. a precise statement of the relief sought;
4. a complete and concise statement of the grounds intended to be argued, including a reference to any statutory provision or rule to be relied on;
5. the name of the court or tribunal appealed from;
6. the date and details of the order under appeal; and
7. the place proposed for the hearing of the appeal.

B. FRAMING THE APPEAL

The contents of the notice should be driven by a consideration of its intended use. The notice must, of course, inform your opponent of your intention to appeal, and on what grounds. The Federal Court of Appeal has identified the function of the notice as setting expectations of the Court—not just the opposing party:

Prentice v. Canada (C.A.F.), 2005 FCA 395 at para. 55. Your opponent will do you no favours; you should assume that the decision under review will be forcefully defended regardless of the contents of your notice. Consider, therefore, the reviewing Court to be your primary audience. Your audience should receive from your notice a clear and persuasive message as to how the decision-maker of first instance erred and why that error warrants reversal or modification.

If it is read before the written argument, a persuasive notice can introduce the appellant's story and highlight errors in a crisp, comprehensible, attention-grabbing fashion, setting the tone for the appeal. If it is read at the end of the appeal, a persuasive notice can be an effective recap of your arguments, disguised as a list of errors, and useful as a touchstone for writing the decision—in your favour.

Where the notice is a genuine statement of the grounds intended to be argued and not merely a menu from which you later select, your position is likely to be more credible. All of your advocacy before the reviewing Court will be consistent and re-iterative, illustrating to the Court that you have been committed to your arguments from the start, lending credence to your position.

Provide Some Context

The Rules do not impose limitations on the form or substance of the grounds listed in the notice. You are not hindered from providing context to the errors you identify. Without a clear picture of the controversy between the parties, it is difficult for the reader to understand why the errors matter or warrant reversal and even more difficult for the appellant to persuade.

A few suggestions for providing context emerge from notices filed by successful appellants in the Federal Court and the Federal Court of Appeal.

Consider beginning your statement of the grounds with a brief summary of the case—two paragraphs at most—so that the reviewing Court can immediately place the errors and their consequences in context.

Consider setting out the key findings of the Court below—but be very judicious.

Try to explain the unintended consequences of the decision under review. A credible description of such consequences—avoiding exaggeration and melodrama—can be persuasive; some members of the judiciary view the unintended consequence as the advocate's greatest ally.

None of this should be overdone, and certainly not at the expense of setting out the real grounds—namely, the errors. See, for example, Remo Imports Ltd. v. Jaguar Cars Ltd., [2008] 2 F.C.R. 132, in which the Federal Court of Appeal found that a notice of appeal of some 49 pages was really a veiled, deficient memorandum of fact and law, reflecting everything but the complete, concise, and precise grounds of appeal. See also Marchand Syndics Inc. v. Canada (Superintendent of Bankruptcy) 2006 FCA 368. A well-drafted notice of appeal should serve as an outline and summary of the anticipated written argument—but should never be an inferior substitute.

Be Complete But Concise

The Rules expressly require that a notice of appeal contain "a complete and concise statement of the grounds intended to be argued". The requirements of completeness and conciseness should be applied just as faithfully to a notice of motion.

Failure to meet the completeness requirement by omitting a ground you later argue means, at best, incurring the displeasure of the court¹ and, at worst, forfeiture of that ground.²

Faced with the risk of forfeiture, the appellant usually applies one or both of the following strategies: (1) casting the grounds as broadly as possible; (2) listing every possible ground. The first strategy undermines the goal of providing notice. The second defeats the conciseness requirement. Both are employed at the expense of persuasiveness.

Avoid Casting the Errors Too Broadly

While it is certainly a question of degree, casting an error broadly enough to cover all bases will seldom prove to be useful and carries some risks. Too vague an articulation may fail to provide sufficient notice, will not be persuasive, and could persuade the Court that even the appellant was unable to identify a clear error.

An example is found in Burns Foods (1985) Ltd. v. Maple Lodge Farms Ltd. (1994), 54 C.P.R. (3d) 408 at paragraphs 27-28, where the plaintiff successfully moved to dismiss an appeal from the order of a prothonotary on the grounds that the notice of motion was not sufficiently specific:

There are, of course, counter-arguments. For example, it is sometimes said that casting an error broadly can:

1. provide flexibility in the argument and insure against the risk of forfeiting a ground by casting it too precisely;
2. confer a strategic advantage by not showing the appellant's hand too early; or
3. help to keep the notice short.

The first reason falls away if due consideration is given to the appeal grounds before the notice is filed; this is also the only way the notice can be made persuasive. The second reason—the element of surprise—is a marginal advantage and, moreover, short-lived because the appellant will file its written argument first. Nor is there any benefit to saving the strongest articulation of an issue for written argument. There is nothing wrong with reproducing in the written argument a very persuasive statement from the notice; the argument provides an opportunity to elaborate.

The third reason—keeping the notice short by using general terms—presumes that the choice is between a general statement covering multiple errors and listing several precise errors. If brevity is the goal, selectivity should be favoured over vagueness.

Limit the Number of Errors

It is unlikely that identifying the errors will be the most challenging task in drafting your notice. The errors will reside somewhere in the gap between what you thought you proved and argued and what the decision-maker found and held. The tendency will probably be to conclude that every point of difference between your argument and the unfavourable decision constitutes an error; but, to quote Gershwin, "it ain't necessarily so".

The decision-maker will rarely, if ever, be wrong on every issue. Restraint is warranted and, unless you intend to waste an opportunity to persuade, also necessary. Raising too many issues runs the risk of having meritorious issues tainted by unmeritorious ones. If you suggest that nothing about the decision is supportable, it is likely at the expense of your credibility and odds are that you are the one in error.

The numbers of appealable errors will, of course, vary on a case-by-case basis. Nevertheless, some practitioners and judges suggest setting a maximum number of issues (usually three) to be raised on appeal. Perhaps the most experienced and confident counsel can do this. In practice, however, the number of grounds stated in the notice has the tendency to multiply due to factors including:

• insufficient time to cement the theory of the appeal before the deadline for the notice.
• ambivalence about the relative strength of the grounds.
• disagreement among counsel as to which are the strongest grounds (or the same disagreement with the client).

In these circumstances, it may be difficult to limit the numbers of errors in the notice. If the number cannot be limited readily, consider stating the key errors first and providing a bulleted list of secondary errors sufficient to serve the notice function without distracting from the persuasiveness of the remaining grounds.

Some errors can be eliminated easily. In identifying and selecting the errors, try to be objective. Ask yourself: where did the Court actually go wrong and what was the consequence? If there is no practical consequence, abandon the ground. Ask yourself: if the reviewing Court accepts this as an error, would it warrant a reversal of the order? If not, abandon the ground. An affirmative statement that the decision maker either did or failed to do something should be supported by an unemotional review of the decision. An error that simply does not emerge on an objective reading should be omitted. These points are obvious, but often overlooked.

If you are left with a long list of issues that cannot be eliminated easily, a useful exercise, seldom performed at the notice stage, is to triage the grounds from strongest to weakest. After thinking through this exercise carefully, you may decide not to pursue those lowest on the list. The reviewing court will be well aware of the fact that decision-makers rarely make more than three or four reversible errors in a single case. If you cannot convince the reviewing court on the first few points, the likelihood of winning on subsequent points is minimal.

Performing the triage exercise early has the added benefit of forcing you to think critically through the case before you are mired in the written argument. By that stage, you may have elevated the importance of subsidiary issues just because they are now familiar to you. You may feel compelled to treat all enumerated errors equally. You may find yourself incapable of emphasizing the most critical errors—also known as the winning grounds.

An infamous (and unusual) case held in a Pennsylvania State Court serves as a cautionary tale. The appellants filed a statement identifying 104 issues for appeal. Based on the sheer number of errors listed, the court found that the appellant had not presented any issues for appellate review and dismissed the appeal. See Kanter v. Epstein, 866 A.2d 394, 400-03 (Pa. Super. 2004), allowance of appeal denied, 584 Pa. 678, 880 A.2d 1239 (2005), cert. denied sub nom. Spector Gadon & Rosen, P.C. v. Kanter, 546 U.S. 1092 (2006).

Cast the Errors Persuasively

There are several strategies for casting the errors to the appellant's advantage.

Consider What Kinds of Errors Cry for Correction.

Successful appellants have included as grounds in their notices certain typical errors that immediately strike the reader as requiring correction. These errors include:

Contravening a long line of authority;

• Applying an incorrect principle;
• Raising a bar to a level that cannot be reached;
• Lowering a threshold to a level that will always be crossed;
• Relying on two mutually exclusive findings;
• Conflating two unrelated legal tests;
• Substituting one test for another;
• Imposing or reading into a test requirements that do not exist in law;
• Holding X without first finding Y, where Y is necessary to X;
• Finding X when the only available and uncontradicted evidence showed Y; and
• Having found X, erred in holding Y, where X precludes Y.

Ensure Your List of Errors Does Not Argue Your Opponent's Case.

Notices are commonly drafted as laundry lists of the Court's findings, usually prefaced by a statement such as "the decision-maker erred in holding that...:" This is a convenient way to set up a list of several grounds, but the convenience may come at a cost. By the time the reader reaches the bottom of the list, the preface may long have been forgotten. The list of "errors" effectively becomes a succinct summary of the decision below—and an argument for why you should not win. This effect can be avoided by including in each listed item a variation on the terms "error", "mistake", or "misapprehension", or by embedding your argument into each error.

Embed Your Argument into Each Error.

As discussed above, if the error is cast too broadly, the notice will do little more than explain to the Court the fact that the appellant will be appealing. Stating, for example, that:

The Court Erred in Holding the trade-mark was not Infringed

is little more than a grievance about the result. If possible, an error should be stated in a way that makes both the error and the need for its correction obvious. This can be achieved by embedding the argument in the statement of the error, for example:

The Court Erred in Holding the Trade-Mark was not Infringed on the Basis of a Lack of Intent When Intent is not an Element of the Test for Infringement.

Embedding the argument into the statement of the error can usually be achieved by distinguishing, explicitly or implicitly, between what the Court did and what it should have done, for example:

• The Court erred in doing X instead of Y.
• The Court erred in finding X despite Y.

Give Due Thought to the Applicable Standard of Review.

You are not required to identify the applicable standard of review for each error listed in your notice. Nevertheless, it may be valuable to keep in mind the applicable standard of review when drafting the grounds.

The Court will not disturb the discretionary orders of a prothonotary unless the questions raised are vital to the final issue of the case, or the orders are clearly wrong in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts. Merck & Co. v. Apotex Inc., [2004] 2 F.C.R. 459 (F.C.A.) at para. 19.

If it is not immediately clear, consider stating in your grounds why the issue raised is vital to the final issue of the case, how the facts were misapprehended or precisely what the wrong principle was so that the reviewing Court does not have to make the connection.

On appeal, pure questions of law are reviewed on the standard of correctness. Questions of fact are reviewed on the standard of palpable and overriding error.³ Where the alleged error is one of mixed fact and law, it will be reviewed using a standard of palpable and overriding error, unless an extricable error of law can be identified, in which case a standard of correctness applies. Housen v. Nikolaisen, [2002] 2 S.C.R. 235.

Occasionally, pure errors of law can look like factual errors. If a legal test requires the Court to consider certain factors, and the Court properly states the test but fails to consider one of those factors, the error may be reviewed on the standard of correctness.⁴

The case law provides guidance as to how to distinguish among categories of errors.⁵ However, there is no real reason to commit to the applicable standard in the context of a notice of appeal—and you may be wrong. To avoid this risk, some counsel introduce errors in their notices by stating "the decision-maker erred in law or committed a palpable and overriding error of fact", without distinguishing among the errors.

Regardless of how the error is ultimately classified by the reviewing court, the more the point in controversy appears to be a principle that could arise in the future, and the more a fact-specific, discretionary issue can be dressed up as an error of law, the more likely it is that the reviewing Court will intervene.

Conclusion

Failing to draft a persuasive notice to commence your appeal will not be the reason why you lose (again). Nevertheless, to maximize your chances of success, it is worth expending the extra effort in drafting your notice to convince the Court that given the choice among the parties' arguments and the decision below—your position is the most appealing.

* * * * * * * * * *

The author gratefully acknowledges the assistance of The Honourable John C. (Jack) Major, Louise McLean and Edyta Kowalewska in providing background for this paper.

Footnotes

1. See, e.g., Marchand Syndics Inc. v. Canada (Superintendent of Bankruptcy), 2006 FCA 368 at para. 14 2 See, e.g., Remo Imports Ltd. v. Jaguar Cars Ltd., [2008]

2. F.C.R. 132 at para. 13

3. The meaning of the expression "palpable and overriding error" was explained by the Supreme Court of Canada in H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401 at para. 55 to include the formulation "clearly wrong". The point is that the error must be plain to the Court and must have affected the result.

4. See e.g., Singleton v. Canada (C.A.) [1999] 4 F.C. 484 at paragraph 42.

5. See, e.g., ibid and Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997] 1 S.C.R. 748, at para. 35.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.