The decisions of Quebec courts are subject to mechanisms to verify their legality. There are several recourses to challenge the validity of a judgment or to have it reviewed in Quebec. One of the most well-known is the call.
Please note that the recourse varies depending on the court concerned. For the purposes of this article, we will only address appeals from decisions of the Court of Québec and the Superior Court. These decisions are normally appealed to the Quebec Court of Appeal.
A lawyer will be able to advise you on the remedies available for decisions in the Small Claims Division or any other court.
What is an appeal?
An appeal is the means by which a judgment is challenged, by applying to a court higher in the hierarchy of courts.
The appeal is not a second trial. It must be shown that the judgment contains flagrant errors. This means that, subject to certain exceptions, new evidence, new facts or new legal arguments cannot be adduced.
The purpose of the appeal is to show that the trial judge erred in his judgment. The facts of the case are therefore not debated on appeal, but rather the manner in which the judgment was rendered.
Criteria for the appeal in Quebec civil law
According to article 30 of the Code of Civil Procedure of Québec (hereinafter: “C.C.P.“), a decision of the Superior Court terminating the proceedings may be appealed as of right to the Court of Appeal of Québec. The grounds for intervention by the Court of Appeal in appeals as of right are:
- The trial judge’s error of law;
- The manifest and determinative error.
Also according to article 30 of the C.C.P., certain decisions can only be appealed with leave. A party who wishes to appeal must first satisfy a judge of the Court of Appeal that the issue should be referred to the court because, among other things:
- It is a question of principle;
- It is a new question or issue of law;
- It is a question or issue of law with conflicting case law.
As for decisions in the course of proceedings, they may be appealed as of right or with leave depending on the nature of the decision.
Error of law
In order for the Court of Appeal to overturn the decision, it must be shown that there was an error of law or a palpable and overriding error.
An error of law refers to an error of a purely legal nature in the interpretation of the law. This should not be confused with an error in the assessment of the facts or in the application of the law to the facts.
For example: A judge writes in his decision that the plot belongs to the neighbour because he has had peaceful possession of it for 9 years. However, the law stipulates that acquisitive prescription takes effect after 10 years of possession. It is therefore an error of law.
The palpable and overriding error
A palpable and overriding error concerns any error, of fact or of mixed fact and law, that meets the following two criteria. On the one hand, the error must be manifest. That is to say, it is obvious, very visible. This error must not be the result of a difference of opinion or interpretation of the evidence.
On the other hand, the error must be determinative. It should not be necessary to review entire sections of the documentary evidence to verify its impact on the action. This error must play a major role in the outcome of the judgment at first instance. Thus, an error on a secondary fact of the dispute is not a determinative error.
For example: A judge writes in his decision that the plot belongs to the neighbour because he has had peaceful possession of it for 10 years. However, the testimonies and evidence filed at the first trial tend to show that the neighbour has only owned the plot for 9 years. This is a determinative error of assessment of the facts, and therefore a manifest and decisive error.
Finally, it must be borne in mind that trial judges have a high degree of independence in assessing the facts. A disagreement with the judge’s interpretation of the facts does not in itself constitute a palpable error if it does not meet the criteria set out above.
The time limit for appeal
According to article 360 C.C.P., the party who wishes to appeal must file his or her notice of appeal with, if applicable, his or her application for leave to appeal, within 30 days of the date of the notice of the judgment or the date of the judgment if the judgment was rendered at the hearing.
If the decision is not rendered at the hearing, the time limit runs from the date of receipt of the notice of judgment. The notice of judgment is not the same as the judgment itself. The notice of judgment is a letter from the court notifying the parties that judgment has been rendered and that it can be consulted.
If the judge renders his decision at the hearing, the period begins immediately. This is even if the parties have not yet received the more detailed written judgment.
Therefore, it is important to consult promptly if you are considering appealing a decision.
Abusive or dilatory appeal
It is important to keep in mind that the Court of Appeal has the power, under article 51 C.C.P., of its own motion or at the request of a party, to declare an appeal that it dismisses to be dilatory or abusive. That is, to declare that a party has abused its right to use the judicial system to achieve its ends.
The offending party may be ordered to pay damages for fees, stenographers’ fees and other inconveniences caused by the appeal. Punitive damages may also be awarded.
The Court of Appeal may declare an appeal abusive when it is clearly unfounded in law. The court may assign wrongful conduct when the action is tainted by bad faith or recklessness. That is, if a reasonable person in the same circumstances as the appellant would conclude that there was no legal basis for the action, there is an abuse of procedure.1 Thus, a proceeding may be considered abusive even in the absence of an intent to harm.
Conclusion
An appeal is a means of challenging a judgment of the first instance. It is a tool that may be appropriate for your situation depending on the facts in the case and the type of proceedings involved.
Appeals are a lengthy and costly process that is governed by complex rules. It is therefore important to consult a lawyer before embarking on the project to assess the chances of success of such an action.
Book your consultation today with one of our lawyers for adetailedand quick analysis of your case.
