2.5 What happens at the hearing

Last Reviewed: June 2023 Reviewed by: Court of Appeal Staff

At the hearing

Before the hearing, the judges hearing the appeal will review the decision of the trial court (or tribunal), some of the evidence, and the factums (written arguments).

The appeal is not a new trial of the issues. There are no witnesses or juries. You cannot introduce new evidence, except in rare cases. See Section 2.6 Introducing fresh or new evidence to learn more about the rare exceptions.

  • The presiding judge or registrar directs the proceeding and their directions to the parties on how the hearing will be conducted must be respected.
  • First, the appellant makes their presentation to the judges. The appellant will present a summary of how they believe the previous decision-maker made a mistake in either the interpretation of the law or the facts presented below.
  • After the appellant’s presentation, the Court will call on you to make your presentation (unless it is satisfied, without hearing you, that the appeal should be dismissed). You should argue that the earlier decision-maker made no mistakes in its judgment. You will have already outlined these points in your factum.
  • Once your presentation is complete, the appellant has an opportunity to reply to new issues you raised in your presentation.

Courtroom etiquette

You must conduct yourself in a way that is respectful of the dignity of the parties who are conducting their appeal. The courtroom is a formal setting, and your conduct should be polite and respectful to the judges, the other parties, their counsel, and court staff. You must not disrupt or interfere with an appeal hearing in progress.

Courtroom guidance:

  • If possible, dress in business clothing.
  • Before the hearing begins, tell the court clerk your name, your preferred form of address (e.g. Mr./Ms./Mx), and your pronouns (optionally) (e.g. they/them, she/her, he/him).
  • Address the judges as “Chief Justice”, “Justice”, “Madam Justice”, “Mr. Justice”, or collectively as “Justices”, depending on the context.
  • In a Registrar’s hearing, the Registrar is addressed as “your honour”.
  • If the hearing is in a courtroom, the appellant sits on the left side of the courtroom (facing the bench). The respondent sits on the right.
  • Remember that only one person should be standing and addressing the Court at any time.
  • You cannot take photographs or videos.
  • You cannot record the proceedings.
  • Put your phone in silent mode, and do not talk on the telephone during the hearing / while the court is in session.
  • You may use an electronic device in the courtroom to transmit or receive text in a discreet manner that does not interfere with the proceedings.

An electronic device means any device capable of transmitting and/or recording data or audio, including smartphones, cellular phones, computers, laptops, tablets, notebooks, personal digital assistants, or other similar devices.

Virtual Courtroom Etiquette

If you are appearing by video for your court appearance, there are a few points for hearing etiquette that are modified:

  • You should aim to find a quiet, private space with a neutral background to make your submissions. Choose a neutral virtual background in Zoom. Avoid backgrounds that are distracting or could detract from the decorum of the Court.
  • Avoid using casual language.
  • You are not required to stand when the hearing commences or ends or when you are addressing the Court.
  • When you are not speaking, you must mute your microphone to minimize any background noise.
  • You are not permitted to video or audio record the proceedings or take photographs (including screen shots).

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