Legal Ease, May 18

As I write this column, I am waiting to be heard by a judge on a motion to extend the time to bring an appeal.

What that means is the person who lost at trial did not bring an appeal within the allotted time, and so, unless an extension is granted, the appeal will be dead.

One of the elements to getting a time extension is to show there is some merit to the appeal itself.

And that makes sense, because what’s the point of letting someone bring an utterly hopeless appeal?

But what does it mean for an appeal to have some merit? Basically, it means that it could succeed.

As a matter of basics, an appeal is a review of a decision of a judge—or sometimes another judicial officer like a justice of the peace—by a panel of senior judges.

The senior, or appeal, judges review the decision to see if it has serious errors that mean it must be changed.

Appeals can be brought on the basis of an error of law or fact, or mixed fact and law.

In general, though, an error of fact will not be sufficient to allow an appeal, unless the error is very obvious.
The reason for this is that judges who heard the evidence (judges on appeal do not usually hear witnesses but only read documents) are in the best place to decide facts.

An error of law, however, is a different matter. If a trial judge made a significant legal mistake, the appeal judges can read that and correct it directly.

As a result, if you are considering an appeal, ask if there is a legal error. In general, factual errors will not be enough to allow an appeal.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.