CARBONE v WHIDDEN, 2015 ABCA 177
14.5: Appeals only with permission
The Plaintiff sought permission to appeal from Justice Côté’s prior Decision and to be heard by a Panel of the Court of Appeal. Côté J.A. stated that the Plaintiff’s Application was an attempt to re-litigate issues that had already been decided. Justice Côté explained that permission to Appeal from one Appeal Court Judge to a Panel of three should only be granted where the topic is one of legal jurisdiction or policy which is important to the public, the Courts, or to counsel. Further:
For the last 100 years or so, appeals have not been heard afresh on the merits, as though there had been no previous decision. That is just as true of appeals from one appeal court judge as it is of appeals from trial court judges. Indeed, sometimes more so, for example when the question is timing or logistics, which is a considerable part of the present application. In particular, the appeal court hearing the appeal does not merely substitute its own opinion, save on questions of jurisdiction, law, or principle. It gives some deference to the decision appealed from. Often it does not ask whether that decision is correct, but rather whether it is reasonable.
Additionally, Côté J.A. observed that permission to Appeal is required by the Rules because, inter alia, the timing of multiple Appeals on the same Action may result in the main Appeal being decided long before the new Appeal could be heard, and the new Appeal “would become academic”. Justice Côté denied the Plaintiff’s Application for permission to Appeal.View CanLII Details