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There are several things that can happen after a judgment is given in a court case. This includes setting aside, appealing and collecting on a judgment. There are rules dealing with each of these.
If default judgment was given against you, you can apply to have the judgment set aside. Default judgment means that the court automatically gives judgment to the other party. This could happen because one party did not file a defence or failed to appear in court. There are, however, time limits for doing so.
If the case was heard in the Court of King’s Bench, an application to set aside a judgment must be made within 15 days of the trial. For a small claims case, this application must be made within 90 days after the date of the judgment. In exceptional circumstances, the court can allow the application to be made later than 90 days after the judgment.
To set aside a judgment, you must apply to the court to do so. If the case was dismissed because you failed to appear, you must include an affidavit explaining why you did not appear. If you are the defendant, you must also show that you have a valid defence to the action. A defence will be considered valid if it is based on reasonable grounds and there is an issue that could be resolved by a trial. The judge will look at the application and decide whether the case should go back to court. If a party successfully has a default judgment set aside, the judge may award costs against them.
If you think the judge made an error in their decision, you can appeal it. Simply disagreeing with the decision is not enough to successfully appeal a matter. You must show that the judge made an error in their decision. Errors are typically based on the law, the facts or a mix of the two.
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.
— Supreme Court of Canada
Appeals are usually made in relation to errors in applying the law. If a judge incorrectly applied a law, the decision can be overturned. Overturning a decision because of a finding of fact that a judge made is more rare. In this case, the decision will only be overturned if the error was obvious and affected the outcome.
Appeals from Small Claims Court go to the Court of King’s Bench. Appeals from King’s Bench go to the Court of Appeal. There are time limits for bringing an appeal.
An appeal is not an opportunity to introduce new evidence that could have been used at trial. It is not a chance to redo the trial. You must show that the judge made an error. On appeal, the court looks at the evidence from the trial and the decision of the trial judge. The appeal court then looks at whether the judge made an error in relation to that evidence and the law.
Parties are not required to have a lawyer for an appeal unless the party is a corporation. Corporations must have a lawyer unless the court orders otherwise.
An appeal from a Small Claims Court judgment must usually be made within 30 days of the judgment. The Court of King's Bench can, however, extend this time up to 150 days if the person can show why they did not appeal within the time limit.
To appeal a small claims judgment, you must file the following documents with the King’s Bench registrar:
The Court of Appeal has a guidebook that details the appeal process.
An appeal from a judgment of a King’s Bench judge must be made to the Court of Appeal. Before appealing certain decisions, the Court of Appeal must grant leave to appeal. This is typically the case for decisions that are not final or if the law says that leave is required. For example, if you appealed a small claims decision to King’s Bench, it can only be appealed further with leave of the Court of Appeal. Most final decisions from King’s Bench do not require leave unless the law says otherwise.
An appeal is started with a Notice of Appeal which you must serve on the other party and file at the court. You will need to file a transcript of the trial with the Court of Appeal. There is a fee to obtain a transcript.
Part 8 of the Court of Appeal Rules sets out what you must include in an appeal book and factum.
To prepare for your hearing, you will need to create an appeal book. The appeal book includes things like the statement of claim and defence as well as exhibits from trial. You will also need to prepare a written argument called a factum. This must include:
The other party must also prepare a written argument. Once all the required documents are filed and served, the registrar of the Court of Appeal will set a hearing date.
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