3.4 What happens at the hearing

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

At the hearing

Before the hearing, the division hearing your 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 3.5 Introducing fresh or new evidence to learn more about the rare exceptions.

  • The presiding judge or registrar directs the proceeding and their directions must be respected.
  • As the appellant, you will make your presentation to the judges. You should present a summary of how you believe the previous decision-maker made a mistake in either the interpretation of the law or the facts presented below. You should not attempt to re-argue the case that you made in the court or tribunal below. You will have already outlined these points in your factum.
  • Your presentation should follow the main points or themes you have set out in your factum. In other words, your factum is your “presentation guide”. The judges will often want to know where they can find the points you are discussing, so you should be prepared to direct them to the most important parts of the filed materials (e.g. by providing page numbers). Expect the judges to stop you during your presentation from time to time, to ask questions.
  • After your presentation, the Court will call on the respondent to make their presentation (unless it is satisfied, without hearing the respondent, that the appeal should be dismissed). The respondent’s presentation will focus on proving that the previous decision-maker made the correct decision and why your appeal should not succeed.
  • You have an opportunity to reply to the respondent. You can address issues raised by the respondent that were not addressed during your initial presentation. If you reply, you cannot repeat anything that you have already said. This is not a time to emphasize your position. Your reply should only address new issues raised by the respondent.

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 that is being heard.

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 at any time, only one person should be standing and addressing the Court.
  • 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 send 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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