This information is intended to explain the procedure in the Manitoba Court of Appeal. It is not intended to give you legal advice. The clerks in the Court of Appeal will do as much as they can to help you, but they are not allowed to give you legal advice.
The Court of Appeal is Manitoba's highest court. It hears cases only in Winnipeg and is located in the Law Courts Building, 100E-408 York Avenue, Winnipeg, Manitoba. Phone (204) 945-2647. Fax (204) 948-2072.
The Court of Appeal hears appeals from the Provincial Court, the Court of Queen's Bench and certain administrative tribunals, including, but not limited to the Residential Tenancies Commission, the Municipal Board, and the Manitoba Labour Board.
An appeal is not a rehearing of a case. In an appeal, the person who lost in the lower court argues that the judge made a mistake. For example, the judge in the lower court may have used the wrong law. It is important to identify what mistake you think the judge made. An appeal court cannot change the decision just because they disagree with it. The lower court is entitled to hear the evidence and come to its own decision. The appeal court may only change that decision if the lower court made a mistake as to the law or significantly misunderstood the evidence.
The Court of Appeal can dismiss the appeal (confirming the decision of the lower court); allow the appeal and order a new trial; or allow the appeal and change the order of the lower court.
The Court of Appeal hears appeals from any judgment, order or decision made by a judge of the Court of Queen's Bench in a civil, family or criminal case. The Court hears criminal indictable appeals from a Provincial Court judge involving adults and young persons (under the age of 18 years) and decisions of certain tribunals or boards/commissions.
For most appeals, a panel of three judges hears the appeal. In very exceptional situations the judges may determine that a panel of five judges will hear the appeal. There are no witnesses or juries in the Court of Appeal. The hearing of a new trial does not occur before judges of the Court of Appeal. New evidence is not considered by the Court of Appeal except in rare cases and with the permission of the Court.
Before the appeal hearing, the judges are already entirely familiar with the appeal. They have reviewed the complete record of the lower court proceedings (as contained in the appeal book), the evidence that was presented in the lower court (the transcript), and the written argument of the appellant and the respondent, as set out in their factum.
At the hearing, the judges hear arguments from the parties involved in the case. These arguments are about the law and how it is to be applied to the evidence in the case as stated in the factums. The appellant proceeds first, then the respondent argues. The appellant has the right to reply. The judges will often ask questions as the case is presented.
Sometimes the judge(s) will give you their decision orally after you have argued. Other times, the judge(s) may “reserve” their decision. That means they will take some time to think about the arguments and they will advise you when you can pick up the decision from the registry office. Make sure the court registrar has your correct address and phone number.
Yes, Court of Appeal proceedings are open to the public except for matters involving Child Protection or Adoption.
You do not have an automatic right to appeal to the Court of Appeal in every case. It depends on the kind of case. For example, in some cases, you must first appear in front of a single judge of the Court of Appeal to ask for “leave to appeal” by filing a Notice of Motion, for that purpose.
In those cases which require “leave” or permission to appeal (the registry staff will tell you which cases those are), the lower court judge or the tribunal must have made a mistake dealing with the law or they must have done something without jurisdiction or authority. It is not always clear whether an issue is a matter of law or jurisdiction.
Even if your ground of appeal is one dealing with the law, the judge does not have to grant you leave to appeal. A person must also show that the point of law has substance to it and it is an important point to be decided.
A single judge sits in “Chambers” on Thursday mornings at 10:00 a.m. in Courtroom 130. You bring your request to the judge by filing a “Notice of Motion for Leave to Appeal,” including a Notice of Intent to Exercise Language Right, along with an affidavit and the reasons for the decision of the lower court judge. An affidavit is a written sworn document that tells the judge what happened. You file the documents with the court registrar at the Court of Appeal office located at 100E-408 York Avenue. You are also required to serve the motion and affidavit on the respondent. The registrar can give you examples of these documents to help you.
Yes. The appeal period varies, depending on the types of decisions or orders. For example, the appeal period for decisions of provincial boards and commissions can be found in the statute or Act that applies to that type of case. It is very important to check the appropriate statute or Act that applies to your case. You should not assume that it is 30 days.
Any party who, for good reason, requires an extension of the time for filing the Notice of Appeal must convince a Court of Appeal Chambers Judge to extend the time by filing a Notice of Motion.
You must file an affidavit in support of your motion. The affidavit must set out the reasons why the appeal was not filed during the required appeal period.
The appeal process is complex. In most cases the Notice of Appeal will start the appeal process. The Notice of Appeal must contain a Notice of Intent to Exercise Language Right. The appellant is required to file three copies of the Notice of Appeal with the Court. The appellant must also serve the respondent or the other party with a copy of the Notice of Appeal within the appeal period.
It is very helpful for the registry staff to be provided with a copy of the order or judgment appealed from.
If your case involves a criminal matter, four copies of the Notice of Appeal are required. The court office will serve the Crown.
Appeals are reviews of lower court decisions, so the appellant must file, along with the Notice of Appeal, proof that the transcript of evidence has been ordered. There is a cost for ordering copies of the court transcripts. Transcripts are prepared by Transcription Services, 2nd floor – 408 York Avenue, Winnipeg or the rural centre where your trial took place.
Once the appellant has paid for the transcript, Transcription Services will prepare and provide the transcript to the Court.
The Civil Rules and the Criminal Rules and the Practice Directives set out the requirements and time frames for the documentation that must be filed. Practice Guidelines and rules should be referred to with respect to the type size and number of pages permitted.
In criminal cases the appeal book is prepared by the Crown. In civil cases the appeal book is prepared by the appellant.
The appellant must prepare five copies of the appeal book. The Court of Appeal requires three copies of an appeal book, one copy must be served on the respondent and one copy is retained by the appellant for his or her own use.
The appellant must serve a copy of the appeal book on every other party to the appeal within (5) days after the filing of the appeal book.
The appeal book must have an index, with pages numbered consecutively and contain the documents that have been filed in the lower court and that are relevant to the appeal, such as motions, affidavits, orders, a listing of exhibits filed, copies of the exhibits filed, the judgment and reasons for decision of the lower court judge, and a copy of the notice of appeal.
The appellant and respondent must each prepare five copies of their own factum. The Court of Appeal requires three copies, one copy must be served on the other party and one copy is retained by the party filing the factum for his or her own use.
The factum contains four parts:
1. an introduction as to what the appeal is about;
2. a summary of the facts that relate to the issues in the appeal;
3. a list of the issues in the appeal; the appellant shall state their position on each issue and must also state the basis for the court’s jurisdiction to determine the appeal and the applicable standard of review on each issue; the respondent shall include statements indicating agreement or disagreement with issues identified in the appellant’s factum; the respondent must also state their position with respect to the basis of the court’s jurisdiction and the applicable standard of review on each issue;
4. an argument for each issue which contains statements setting out the law and facts to be discussed with reference to the argument.
You must also include an estimate of the amount of time required for argument.
The appellant and the respondent may also file a case book containing portions of other legal cases that are relevant to the issues on the appeal. Five copies of the book of authorities are required. The Court of Appeal requires three copies, one copy must be served on the other party and one copy is retained by the party filing the book of authorities for his or her own use.
Another important document that must be filed in order to have your appeal heard is the transcript of the proceedings in the lower court.
If your case involves oral evidence (testimony given by witnesses), the complete transcript must be ordered.
For those cases where there was no oral evidence given, the applicant or appellant must order the transcript of the lower court judge’s reasons or the reasons of the board or tribunal, if available, and include these in the Appeal Book.
In those cases where the lower court judge may have reserved his/her decision, the reasons for decision can be located in the lower court file and can be copied for you for a fee.
Transcripts of the oral reasons for decision from a judge are prepared by Transcription Services Unit, 2nd Floor, 408 York Avenue, Winnipeg, Manitoba.
For other cases, obtain the reasons for decision from the tribunal.
There are no fees for any criminal appeals or criminal motions. As well, on all appeals before the Court of Appeal, there is no fee for filing appeal books, factums or case books.
Once the Court of Appeal office receives the transcript of the lower court, the appeal books and the factums, a date will be set for the hearing of the appeal that is agreeable to all parties.
The Court Registry System is the electronic record of court proceedings in both the Court of Queen’s Bench and the Court of Appeal. You are able to search Court of Appeal records back to 1991 by either court file number or by a party’s name. You will be able to see a listing of the court documents filed.
Judgments of the Court of Appeal are published in either French or English in the Manitoba Reports, which is available at the E.K. Williams Law Library at the Faculty of Law, University of Manitoba. Free access to electronic copies of recent court decisions is available through www.canlii.org.
If your appeal is dismissed, the Court of Appeal may assess costs against you. Usually, although not always, the scale of costs will be in the range of the amounts set out in the Court of Appeal tariff.
Yes, in some cases an appeal can be taken to the Supreme Court of Canada in Ottawa.
This information is intended to provide some assistance but it is not intended to give you legal advice. If you still have questions, you should speak with a lawyer. The Community Legal Education Association (CLEA)offers both a Law Phone-In and Lawyer Referral service. The Law Phone-In provides general legal information. To contact both services you can call 204-943-2305 or toll free at 1-800-262-8800. For the Lawyer Referral service only you can call 204-943-3602. You could also contact The Legal Help Centre for additional assistance.
Depending upon the kind of case you have and your financial circumstances, you may qualify for financial assistance through Legal Aid Manitoba. For more information on Legal Aid, you may wish to contact Legal Aid Manitoba at 204-985-8500 or toll free at 1-800-261-2960.
To view the fees you may visit the Manitoba Justice website here
Here are some terms used that may be unfamiliar or have a special meaning.
A statement written down and sworn or affirmed to be true. An affidavit is usually signed before a notary public or a commissioner of oaths.
A review by a higher court of the decision of a lower court or tribunal. The higher court may affirm, vary or reverse the original decision.
The person or party bringing the appeal to court.
A bound volume filed with the Court by the appellant which contains all of the documents, affidavit evidence, orders, listing of exhibits filed, judgment and reasons for the decision of the judge or other authority of the court or tribunal appealed from.
The Court has decided in favour of the appellant (party bringing the appeal).
The Court has decided in favour of the respondent (party against whom the appeal is brought) and against the appellant.
A list and photocopies of past legal cases that are relevant to the issues and are cited in the factum.
A matter heard before a single judge of the Court of Appeal. Chamber sittings are in courtroom 130, and take place on Thursday mornings at 10:00 a.m. Chamber sittings often involve Motions for Leave to Appeal.
Rules regarding court proceedings before the court that involve individuals, organizations, or governments. Civil Rules do not generally refer to criminal cases.
The Court Registry System is the electronic record of court proceedings in both the Court of Queen’s Bench and the Court of Appeal.
Court transcript order form:
A form to be completed when ordering transcripts or reasons for decisions.
Rules regarding criminal court proceedings as opposed to civil proceedings.
Evidence that was presented to the lower court or tribunal.
A bound document filed with the Court which is made up of four parts: (1) an introduction as to what the appeal is about; (2) a summary of the facts that relate to the issues in the appeal; (3) a list of the issues in the appeal; includes the basis for the court’s jurisdiction and the applicable standard of review on each issue; and (4) an argument which contains statements setting out the law and facts and includes an estimated length of time for argument.
The final decision by the Court in a legal proceeding. The terms judgment and decision are often used interchangeably. A judgment may be written or given orally in court.
A request to the Court for an order which occurs during the course of a court proceeding. Motions are very common occurrences and can be made for many purposes, including asking for extensions of time to file an appeal. A Notice of Motion must be filed with the Court and include an affidavit giving details in support of the motion.
See Court of Appeal Civil Rule 43.1 for information regarding service requirements.
Motion for leave to appeal:
The procedure for requesting the Court's permission to hear an appeal.
Notice of Intent to Exercise Language Right:
You have the right to use the English or French language in documents or proceedings before the Court of Appeal. The notice is a bilingual endorsement for parties wishing to use a language other than that of the initiating document.
A decision of a court or other decision-making body that may or may not be the final outcome of the matter.
Notices from the Court that are supplemental to the rules and procedures. They include specific instructions regarding the preparation of material and other general information.
When a judge or judges do not immediately give their decision, but issue their written decision at a later date.
The person who is in response to or in opposition to a motion made by an applicant; also a person who is in response to or in opposition to an appeal brought by an appellant
Serve or Service:
Official delivery of legal documents, to another party to the proceeding, following specific rules as set out in Court of Queen’s Bench Rules and Court of Appeal Rules, or any other applicable Statute.