Alberta’s “Free Kick at the Can”? Appeals from Applications Judges to Justices

A recent “must read” decision of Mr. Justice Colin Feasby highlights an ongoing topic of discussion amongst much of the civil litigation bar in Alberta. As a result of the traditional standard of review (or, perhaps, the approach thereto), in the authors’ experience, many counsel approach an application before an Applications Judge as a “trial run” at what all parties assume will be an appeal to Justice Chambers—with little consequence save for costs. This approach results in a significant waste of time, money, and court resources.

In Lesenko v Wild Rose Ready Mix Ltd, Justice Feasby clearly and compellingly argued that: “the general approach to standard of review of Applications Judges in Alberta should be revisited by the Court of Appeal and the Rules of Court Committee.” In the decision, Justice Feasby argues that allowing new evidence on appeal combined with a non-deferential review standard is inefficient and burdens the court, suggesting it may be time to re-evaluate Alberta’s current approach to such appeals.

Justice Feasby describes Applications Judges as playing a “critical role” in helping the Alberta Court of King’s Bench (“ABKB”) manage its increasing caseload and in assisting with the “orderly progression of civil disputes.”

In a General Practice Note regarding Applications Judges, the ABKB has stated that “where possible” applications should first be made to an Applications Judge and will be redirected there if brought to a Justice in Chambers instead. Under the Court of King’s Bench Act, an Applications Judge is given largely the same power and jurisdiction as a judge sitting in chambers with exceptions outlined in s 9(1)(a) and areas outside of their jurisdiction set out in s 9(3).

Appeals of Applications Judge decisions are made to a Justice. Rule 6.14(3) provides that such appeals are made on the record that was before the Applications Judge, but may, if permitted, include additional relevant and material evidence. New arguments may also be made in this type of appeal. As they are “made on the record,” the standard of review is actually best described as one of correctness as opposed to de novo in the true sense of the phrase. Whether this is what happens in practice, however, is not as clear.

Judges are appointed to Superior Courts, like the ABKB, by the Federal Government according to s 96 of the Constitution Act. Alberta courts have considered any deference to decisions of Applications Judges, who are provincially appointed, as “fettering the discretionary jurisdiction” of federally appointed judges, which has led to such appeals being heard de novo for the past hundred years. Why this should continue in light of efforts to streamline procedure and save judicial resources is difficult to justify.

Justice Feasby convincingly proposes that the current system of de novo appeals is not an optimal use of court resources, especially as the number of Applications Judges increases. He has support in this view, as explained succinctly by Justice Marion who criticizes the practice of treating initial hearings as preliminary steps in anticipation of a full appeal, arguing that this strategy misuses court resources and undermines procedural efficiency and fairness.

Justice Feasby noted that the “historical jurisdiction” of Applications Judges should not be “determinative”, and that other relevant factors need to be considered from developments in s 96 jurisprudence over the past century. Such factors include its scope, exclusivity, monetary limits, appeal processes, impact on superior courts, and societal objectives. Justice Fraser has also expressed concerns with the current process of appealing an Applications Judge’s decision, arguing that allowing appeals with new evidence encourages inefficiency, delays justice, increases costs, and discourages parties from presenting their strongest case at the initial hearing.

Justice Feasby then reasoned that going from a de novo standard of review to an appellate standard would allow deference to Applications Judge’s “discretionary decisions” and “findings of fact,” except where there are “palpable and overriding error[s].” This approach would give “more weight” to Applications Judge decisions, but would not alter monetary limits and would help to “streamline appeals before Justices and encourage litigants to make better use of their time before Applications Judges,” which is in the public interest.

Justice Feasby concluded that there is currently no supportable constitutional argument for treating appeals at the ABKB from Applications Judges differently than appeals from the Alberta Court of Justice. He points out that Ontario courts and the Federal Court of Appeal have not “stumbled” on the same “constitutional considerations” or concerns that Alberta courts have. Both use the same standard of review for appeals of decisions of a judge and an Associate Judge.

Justice Feasby suggests adopting a normal appellate standard of review for appeals of Applications Judge decisions. If new evidence is permitted on appeal, deference could still be given to the Applications Judge’s findings that are not affected by the additional evidence instead of requiring a “complete do-over”.

In alignment with the purpose of the Rules of Court, which are to resolve claims in a timely, fair, just, and cost-effective way, Justice Feasby proposes two changes:

1. Revisit Rule 6.14(3) so that an appeal of an Applications Judge’s decision is restricted to the record. This would bring it into “conformity with general appeals practice[s]”; and

2. Only permit new evidence on an appeal of an Applications Judge’s decision if it meets the test set out in Palmer v The Queen, 1979 CanLII 8 (SCC), [1980] 1 SCR 759.

By “forcing parties to put their best case forward in the first instance” and “eliminating the right to adduce new evidence on appeal,” a more efficient use of court resources will be encouraged. Using the normal appellate standard of review will make “frivolous” appeals “less attractive” and promote more “expeditious” justice.

Overall, it is Justice Feasby’s hope that the process of appealing Applications Judge decisions will be re-assessed by the Rules of Court Committee and the Court of Appeal. Recently, Justice Fraser also expressed this hope and agreed with Justice Feasby’s analysis on the “incongruity” of de novo appeals. It is the author’s opinion that changing from de novo appeals to a normal appellate standard of review would best make use of scant judicial resources and accord with Rule 1.2. This change in approach can only benefit the users of the justice system in Alberta.