The bill from a civil appeal can shock even the most
litigation-savvy client. While appeals will never be a bargain,
counsel can help keep costs down by maximizing efficiency.
First, and most importantly, plan ahead. Use the appeal period
to carefully consider the issues. What kind of finding are you
appealing and what is the applicable standard of review? Keep in
mind the powers of the appellate court and decide at the outset
what your strong grounds for appeal are. Concentrate on developing
Assessing the basis for your appeal at an early stage allows you
to consider and reject weak grounds of appeal. Your notice of
appeal should reflect your strongest grounds. Resist drafting many
very specific grounds – a few thoughtfully-drafted, broader
grounds will reduce the need for a subsequent amendment. (This is
equally true on a motion for leave to appeal.)
Having thought out your issues, you will be able to successfully
resist the temptation to list all possible evidence in your
certificate respecting evidence. Selectively determining which
exhibits and transcripts should form part of the record will reduce
disbursement costs. Your panel will be grateful for a more focused
record – and a happier panel is a good thing!
Second, if you are responding to an unfocused appeal, work with
appellant's counsel to narrow the issues and the evidence
required before you spend considerable time and energy drafting
your responding factum. Rule 61.05(8) allows costs sanctions for
unnecessary evidence. Warn uncooperative opposing counsel that, in
the event the evidence or transcripts are unnecessary, you will be
asking the appeal court to penalize his or her client in costs, as
well as to disallow the disbursements related to the irrelevant
Third, when you start drafting your factum, use the proper
formatting guidelines from the outset. It may seem like a small
thing, but when managing page limits, it is ineff icient (not to
mention disheartening) to learn that the 30 pages of brilliant text
you thought you had drafted are in fact 40 pages when formatted
If you start with the right spacing and margins, you can
evaluate length as you draft, and make strategic decisions about
your argument to keep within your page limit as you go. Your
argument will be more focused and your time spent editing will be
kept to a minimum.
Fourth, work with opposing counsel to file a joint book of
authorities and a joint compendium (and make it double-sided). The
court will appreciate having fewer volumes to lug around and you
can share the costs of the disbursements. The extra time spent
coming to an agreement about the content of the book of authorities
and compendium will pay your client back in increased
Fifth, if significant portions of your record are in electronic
form, consider seeking agreement of counsel and an order from a
single appeal court judge to rely on the electronic record to
minimize the need for paper and the resultant disbursement costs.
If the order is granted, you will need to check with the court to
ensure it has the technological resources to support your material,
failing which you may have to provide those resources.
If your appeal takes you all the way upstairs, remember that the
Supreme Court of Canada has gone electronic. By this fall, all
appeal materials must be on CD-ROM, though some appeals are already
proceeding electronically with agreement of the parties.
Currently, the Supreme Court of Canada is requiring a CDROM for
each of your factum, appeal record and book of authorities.
Although fewer hard copies are required, you can't get away
with an entirely electronic filing. Happily, however, the reduction
in hard copies will translate into lower disbursement costs for the
Finally, if your practice includes a lot of appeals, staff them
economically. A knowledgeable clerk will be invaluable in
navigating procedures and compiling and filing the record at a
lower hourly rate. If you don't do enough appeals to justify an
appellate clerk, spend time at the outset of the appeal process
familiarizing yourself with the procedural rules and requirements
and ask your assistant and clerk to do the same. Mistakes that are
easy to prevent can be time-consuming and costly to fix.
At the end of the day, there is no substitute for thorough
preparation. A good argument on appeal can never be done on the
cheap. However, by thinking ahead, working with opposing counsel
and making small changes in your approach to appellate practice,
you can keep costs manageable for your client, without compromising
the quality of your representation.
Originally published in The Lawyers Weekly, August 28,
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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