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Hi, my name is Anna Troitschanski and I am an associate here at Feldstein Family Law Group. Today I will be providing you with a brief understanding of appeals of a Court Order or Arbitrator’s Award.
So, what happens when you attend Arbitration and a few weeks later you receive the Arbitrator’s Award and it is not what you were expecting? Or, what happens after litigating your matter, the Court provides its decision and they do not find in your favour? It is important that you understand what options you may have available to you after the decision or award has been rendered.
When appealing an Arbitration Award or Court Order, it is important to consider the grounds for your appeal. All too often, potential clients come in with the belief that they obtained a “poor result” and because of this result, they wish to appeal and figure that they will be successful in doing so. In short, they believe that another decision-maker may decide their matter differently. The issue here is that an appeal will not be successful because another impartial decision-maker may decide the matter differently. Rather, an appellant must demonstrate that the decision-maker made an error of law, error of fact, or an error of mixed fact and law.
A question of law relates to whether the decision-maker applied the wrong test or legal principle to an issue being decided. The threshold to be met by an appellant is that of correctness. As such, the appellant must demonstrate that the decision-maker did not apply the correct legal test or legal principle when interpreting the facts to decide a legal issue.
With respect to questions of fact, it was held that courts ought to defer to the finder of fact and should not interfere with their findings unless there is an obvious misapprehension of the facts based on the evidence so that the result is a palpable and overriding error.
Furthermore, with respect to errors of mixed fact and law, the case law provides that such findings lie along a spectrum. That is,
if the error can be attributed to the application of an incorrect legal principle, then the standard is that of correctness; if the legal principle, however, cannot be extricated, and the appellate court is dealing with the application of a legal standard to a set of facts, it is a question of mixed fact and law, then the question is subject to a standard of palpable and overriding error.
If you satisfy the Court that the original decision-maker made an error based on a question of law, question of fact, or question of mixed fact and law, your appeal may be successful. However, even if successful, a Court may substitute its decision or, in the alternative, refer the matter back to the original decision-maker to decide the issue in light of the appeal.
It is important that you consider the above and contact a lawyer to discuss the possibility of an appeal. When contemplating whether to accept or appeal a decision, it is best to consult a lawyer at your earliest convenience as the period to commence an appeal may be as short as 15 days after the decision is rendered.
If you would like more information, please visit our website at www.separation.ca, or call us for a consultation, at 905-415-1636.