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Facts are not found in an appeal

One misconception that people sometimes have about the appeals process is that they're going to give the court a chance to find new facts. They view an appeal as if it is a second trial.

This is an improper way to look at appeals. It is not the same as a second trial. The facts of the case are not going to be discovered during the appeal. They were already discovered during the trial and they generally have to stand.

The appeal, therefore, is just to challenge the outcome of the case, based on those established facts. For instance, you may think that the judge misinterpreted the law and did not apply it correctly. You are not arguing that the facts are wrong, but that the judge should have come to a different conclusion when looking at those facts. You're not asking for new facts to be found outright.

There are some ways in which facts can be dealt with in an appeal. For example, you may want to challenge the way that the facts were discovered. You may think they were discovered illegally and should not be considered. You could be appealing on the grounds that the outcome was wrong because these specific facts were used.

Other than that, though, you are typically struck with the facts from the original trial. Make sure that your appeal is based on the proper grounds when you start. Errors of fact can happen, as noted above, but most appeals are focused around an error of law. Knowing what the focus should be gives you the best chance for success in Alberta.

Source: Ontario Bar Association, "5 Tips For Arguing Your First Appeal," Brock Jones, accessed July 15, 2016

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Ridout Barron
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