In cases where one or both of the parties to a lawsuit feel that the Trial Judge has made an error of law or fact in his or her judgment, the decision of the Trial Judge can be appealed to the Court of Appeal and possibly to the Supreme Court of Canada.

The Court of Appeal is the highest court in Alberta. When you appeal in a personal injury law case, you are asking the higher court to review a decision the lower court made about liability (who was at fault for the accident that caused your injuries), or quantum (the amount of money the lower court said was appropriate to compensate you for your injuries).

You can’t appeal a trial judge’s decision just because you don’t like the result. It’s important to remember that an appeal isn’t a retrial, and you don’t have an automatic right to appeal all matters. To successfully appeal, you have to prove that the trial judge made a legal or factual error that affected the outcome of your case. Also, civil cases (like personal injury cases) have a time limit for filing an appeal. Your appeal must be filed 1 month from the date the judge issued his or her decision on your case. However, if you’ve missed your time to appeal, please speak to your lawyer to see if there are any grounds to extend the time limit.

The following steps have to be followed if you wish to appeal your case with the Court of Appeal:

  1. Fill out the necessary forms
  2. File and serve the appeal on the other party
  3. Get a transcript and appeal record from the court
  4. File and serve the transcript and appeal record
  5. Prepare, file, and serve your written argument
  6. Attend court. You will be asked to attend the Unscheduled Civil Appeals list, if your appeal isn’t progressing in accordance with the Rules of Court, or has procedural issues that need to be addressed. Lists are short court appearances where the appeal is discussed with a case management officer
  7. Attend the appeal hearing

If you are not satisfied with the decision from the Court of Appeal, your lawyer will advise if it’s appropriate to apply for leave to appeal to the Supreme Court of Canada. Much like the Court of Appeal, the Supreme Court of Canada chooses which appeals will be heard, and you aren’t automatically granted the right to be heard. There are also strict limitation periods that must be followed if you plan to seek leave to appeal to the Supreme Court of Canada. If you miss the deadline you lose your appeal rights. Your lawyer will discuss this with you.

Before an appeal is heard by the Supreme Court of Canada, the first step is to file a written application for leave, which your lawyer will prepare. Once your application is submitted, the Court staff will review it, and either supply you with a file number or explain why a file number has not been assigned. Typically, only cases that involve a legal issue that is of importance to the general public or where the decision is likely to have an impact on society at large (e.g., the interpretation of a piece of legislation) are heard at this level.

If your case goes to a hearing with the Supreme Court of Canada, each side is given one hour to make their submissions. After this, the Court may immediately give their judgement by dismissing or allowing the appeal, but typically the court will reserve (gives the Justices time to discuss and reflect) before issuing a decision at a later date.

Personal injury cases do not often go to the Court of Appeal or onto the Supreme Court of Canada. There must be grounds for appeal. Your lawyer will guide you through your options after your trial.

CAM LLP’s Appeal Experience

Our firm has been involved in two of the three personal injury law cases that went all the way to the Supreme Court of Canada and shaped how personal injury law damages are assessed across Canada. These case are known in legal circles as “the Trilogy.”

The Trilogy and CAM LLP

In the 1970s, two of our named partners, Ron Cummings Q.C. and Don Andrews, Q.C., were instrumental in making history with respect to Canadian personal injury damage awards. Their advocacy created precedent-setting law that has been consistently applied in Canadian courts for over the last 40 years.

As a Result of the Trilogy:

  • Canadian personal injury law focuses on compensation, and not retribution;
  • Injured plaintiffs can be more adequately provided for over the course of their life with periodic payments, as opposed to simply being granted a one-time lump sum payment
  • Canadians receive the same fair judicial treatment in general damage awards, regardless of what part of the country they live in.

Canadian Personal Injury Damages are Intended to Compensate

The Trilogy crystallized the principle that personal injury damages in Canada should focus on compensation and not retribution as tends to be the case in the US where juries sometimes award astronomical damages to “punish” wrongdoers. In Canada, the courts opted to treat the goal of general damages (damages for pain and suffering) as putting an injured person back in the position they would have been in if they had not been injured. But, as Supreme Court of Canada has pointed out, “there is no medium of exchange for happiness, and there is no market for expectation of life. No amount of money can provide true restitution.” But, the courts still had to figure out a consistent formula for providing a fair amount of compensation.

In the 1970’s, courts were also becoming concerned about inconsistent awards for general damages. In the absence of strong judicial precedent at that time, there was no way for lawyers (or the courts) to evaluate and estimate the amount of general damages with any certainty. Canadian courts were growing worried that general damage awards would follow the trend in the United States. A significant downside to the American approach was that it was driving the costs of insurance beyond the reach of ordinary people.

The Supreme Court of Canada resolved this issue in 1978 by ruling on the three cases, referenced to as “the Trilogy. The cases that make up the Trilogy are:

Ron Cummings, Q.C. and Don Andrews, Q.C. of CAM LLP were counsel for the plaintiffs in both the, Andrews and Thornton cases.

Periodic payments address fluctuation future needs better than a single lump sum payment

The Trilogy cases were similar in that they all involved a seriously injured plaintiff who was going to require care for the rest of his lives. In Andrews, Justice Dickson stated that the issue of damages for personal injury cases was in need of legislative reform. One of his major concerns was the potential downside in awarding an injured plaintiff a large lump sum of money as a one-time payment. The problem with this approach was that a lump sum of money is subject to inflation; if invested, the amount can fluctuate up or down; and any income earned on the lump sum through interest or otherwise gets taxed. The risk was that Plaintiffs who are injured and require lifetime care have fluctuating needs at different times in their lives and it was difficult to figure out with any certainty what present lump sum payment would be enough to cover those future needs. All that could be done was to guess at what they would “probably” require. Justice Dickson related this to looking into a crystal ball. To remedy the situation, the Court opened the door to periodic payments and what has become known as structured settlements for catastrophic injury victims.

More on Structured Settlements.

Consistency in general damages awards across Canada

The Supreme Court of Canada was also concerned that a plaintiff in one part of the country might receive a greater general damage award than someone from another part of the country. The Court was of the view that everyone in Canada should be entitled to a relatively equal amount of compensation for pain and suffering. To this end, Justice Dickson set the upper limit of damages available for pain and suffering at $100,000 in the Trilogy cases. This amount has been increased over the years to keep pace with inflation and is now approximately $370,000.

Having an upper limit on damages for pain and suffering is valuable for all Canadians. A cap provides certainty for plaintiffs and defendants. This certainty keeps insurance costs in Canada down, because insurance companies don’t have to raise premiums out of fear of astronomical damage awards. This does not mean that plaintiffs are expected to shoulder the burden of keeping insurance premiums low. Plaintiffs are also fairly compensated through other heads of damages, like cost of future care or loss of future earnings.

In summary, the Trilogy sets Canada apart from the United States by focusing on compensation, rather than retribution. The goal of personal injury damages in Canada is to put the injured person back in the position they would have been in if they had not suffered the injury, and to provide for periodic payment regimes to ensure that the needs of victims of severe injuries are properly met.

CAM LLP is extremely proud to have played a leading role in shaping the way damages are awarded for personal injury lawsuits in Canada. We take that legacy very seriously and we carry on the tradition of strong advocacy in our work today, fighting for our client’s right to full compensation.