What to do when you lose or are not happy with the trial. They say he who wins last laughs last. If you lost your case, all hope may not be lost. You have an absolute right to Appeal. Appeals have some advantages and disadvantages. We’ll cover both. As part of this blog post, I’ve included many resources for anyone who wants to Appeal. They are listed below. All we ask in return is that you share or like this post in exchange for the free materials.
To Begin with
If you’re in Appeal, you’re one of three types of parties. An Appellant, a Respondent, or an intervenor. The Appellant is the person who launched the Appeal. So if you’re a defendant who lost their case, you’d Appeal and be the Appellant. The prosecution would be the respondent. If you’re a defendant who won, and you’re in Appeal, then the prosecution has Appealed. That would make them the Appellant and you the respondent. He who launches, is the Appellant. If the issue in Appeal is of concern to more than just the defendant, you may find some parties applying for Intervenor status to argue issues either unique or more general.
If you are Appealing, you have 30 days to do it. If you miss that, then look below to the Motion to extend time section.
If you got a ticket with a fine on it, it’s a Part I. You’ll need to fill out a Part I Notice of Appeal. If you got a Form 104 or Form 106 Summons, then you’ll need to fill out a Part III Notice of Appeal. Once completed, it must be served (given to the opposing party) and filed. Before you can file it, you must do 2 things:
- Pay the Fine;
- Order the Transcripts of the trial
If you can’t afford to pay the fine, look below to Motions to Waive payment. There is only one way around a transcript. That is, deemed not to dispute convictions under section 9.1 of The Provincial Offences Act. These convictions are Part I offences (ticket with a fine on it) where no one appears for the trial. No trial is held and therefore, no transcript is available.
The Notice of Appeal, along with a the receipt for the fine and a transcript order are all you need to file the Appeal. YOU DO NOT NEED TO SERVE AND FILE ANY MOTIONS unless you meet one of the circumstances below.
Motions to Extend Time
If you’re out of time, then you’ll need to ask the court for an extension of time in which to file an Appeal. Different jurisdictions have different forms but most just use general notice of motion and general form of affidavit forms.
You can complete the Notice of Motion and affidavit setting out the material facts which explain the need for an extension. There are some cases below which will help guide you in drafting the materials. Generally, you must establish the following:
- The reason you’re late in filing the Appeal
- When you formed the intention to Appeal
- The grounds of Appeal
- The defence to charge
- The interests of Justice require the extension to be granted.
Waiver of Payment
In order to not pay the fine before filing the Notice of Appeal, You’ll need to make an Application for Recognizance. Some jurisdictions have a motion to waive payment and others use the standard recognizance form. Check the local practice. Some jurisdictions require service and filing and then coming back on a return date and others (Toronto) let you walk it into court.
In order to not pay the fine, you will generally have to fill out a Notice of Motion and an Affidavit. To be successful, you’ll have to demonstrate that you can’t reasonably pay the fine in time to Appeal. To do this you could include income and expenses in your affidavit, attach T4 slips, income statements, pay stubs, list of expenses, and the like. It’s important to establish you can’t pay the fine so don’t hold back. Put it all out there.
Stay of Conviction
If you’re appealing a traffic offence, there is a semi automatic stay of the conviction pending Appeal. It requires serving the Ministry of Transportation with copies of the Notice of Appeal, receipt or the fine (or recognizance) and transcript order. If you have not yet filed a Notice of Appeal because you’re also applying for a recognizance or an extension then technically there is no Appeal yet so you won’t be able to do that.
There are times when you need a stay of conviction (A stay is a judicial halt in the proceedings. It sets the conviction aside pending Appeal). For instance, you (or your client) may be on probation. A stay would suspend that until the Appeal is decided. If successful on Appeal, well… It’s a simple concept.
In order to obtain a stay you need to prove 3 things:
- There is merit to the Appeal; Your Appeal must have a legitimate issue;
- There would be irreparable harm to you (or the client);
- The balance of convenience must favour a stay; This is the public interest component;
This is not a difficult task; especially in the POA context. if you have a legitimate Appeal, you (or your client) suffers some harm, and there is no public interest concern or it can be remedied with conditions, you’ll likely get the stay.
Complete a Notice of Motion and supporting Affidavit, serve and file it and attend court on the return date to argue it.
Bail Pending Appeal
This is a whole subject unto it’s own. You can visit my CPD site’s program on Bail Pending Appeal. You’ll need to register if you’re not a member but it’s free. It has all the materials and an audio archive of the program.
A Final Note
While this post discusses the basics of launching an Appeal, it does not touch upon the advocacy behind perfecting an Appeal or arguing one. I’ll follow up with posts on these subjects. I prefer to always do a factum on an Appeal, it makes arguing the case so much easier. Until then, enjoy the materials below. Click the like button to unlock them.
Notice of Appeal Forms
part i notice of appeal – word – Word Version
Part III Notice of Appeal – Word – Word Version
Extension of Time to Appeal
Halton Region Packages
Case Law – Extension of Time
Case Law – Test on Appeal
Case Law – Remedies
Case Law – Transcripts