Submissions and evidence

Submissions process

What is the briefing and argument process like in a typical commercial appeal?

In a typical commercial appeal, the case will normally be limited to only deal with the items that gave rise to the appeal. The exchange of writs will normally be limited to the appeal writ and the defence writ. As a clear starting point, the procedure will be oral in regard to the appeal of final judgments. In contrast, the appeal in regard to court orders’ non­final decisions are made on a written basis.

New evidence

Are appeals limited to the evidentiary record that was before the trial court, or can new evidence be introduced on appeal?

New evidence can be introduced before the appellate court. New evidence should be specified in the notice or appeal or the appellee’s brief. If the new evidence is not specified in the notice or brief, it must be submitted to the court as soon as possible and no later than four weeks before the main hearing. The court can permit late submissions at its own discretion.

New evidence of wrongdoing

If litigants uncover new evidence of wrongdoing that they believe altered the outcome of a trial court judgment, can they introduce this evidence on appeal?

New evidence can be introduced before the appellate court. New evidence should be specified in the notice of appeal or the appellee’s brief. If the new evidence is not specified in the notice or brief, it must be submitted to the court as soon as possible and no later than four weeks before the main hearing. The court can permit late submissions at its own discretion.

New legal arguments

May parties raise new legal arguments on appeal?

New claims and arguments can generally be raised before the appellate court. The court’s permission is required where the opposing party objects to the raising of new claims and arguments. The court can permit new claims and arguments where it is excusable that the new claims and arguments were not presented before the first instance, if there is reason to believe that denying the permission to raise the new claims and arguments will cause a disproportionate loss for the party or if it is sufficiently possible for the opposing party to safeguard his or her interests. As a rule, it is possible to raise new claims and arguments by arguing that the opposing party is sufficiently able to safeguard his or her interests.

The appellate court can also dismiss new claims and arguments if they expand the subject matter of the case beyond those raised before the first instance court.