Your First Appeal at the OCA: Tips from the Gurus

  • February 28, 2022
  • Nancy Sarmento

New lawyers navigating their first appeal to the ONCA are probably doubly stressed, particularly if they are working alone, and especially where the appeal is complicated by a motion to quash (and other motions!).

For those who are new to the process, I have three tips.  First, purchase or borrow a copy of Sopinka and Gelowtiz’s Conduct of an Appeal.  I cannot tell you how many times I have read this book and turned to it in times of need.  Second, to sharpen your writing before you write your factum, read Forget the Wind-Up and Make the Pitch: Some Suggestions for Writing More Persuasive Factums by The Honourable John I. Laskin. Third, when making oral submissions, refer to judges as “Justice LAST NAME” as opposed to “Your Honour.” 

Aside from my simple tips, below is a fantastic ensemble of gems from the gurus of appellate advocacy.  

Ewa Krajewska of Heinen Hutchinson recommends:

  1. Remember that this is an appeal—not a re-trial. The starting point is the trial or application judge’s decision and reasons. The application judge must have gotten the law correct but will receive deference on the findings of fact. If you are the appellant, did the trial judge get the law wrong? Are the findings of fact supported by the record? If you are the respondent, demonstrate that the trial judge applied the law correctly and the findings of fact are supported by the record. 
  2. Choose your points carefully. If you are the appellant, do not raise myriads of grounds of appeal. For your factum, carefully organize the points on appeal. Distill them to two or three grounds. You undercut your credibility if you raise ten. 
  3. Consult, talk, get feedback. If you were the lawyer on the application or trial, it’s sometimes hard to do your own appeal. You are close to the win or loss. It has also had an emotional effect on you. Show the decision to your colleagues. Talk through your points and grievances. Get others’ views. And then, when you are getting ready for the appeal, don’t be shy to do some practice runs. The best and most senior lawyers do practice runs. That’s how they get so good!