This is a single section from Chapter 28. Read the full chapter here.

Should the right to bring an appeal be limited?

The rights to bring first and subsequent appeals should not be unreasonably limited.

Limiting the right to bring an appeal is a way of encouraging finality and avoids the prolonging of litigation. However, any limits must be reasonable and not so restrictive as to render the right to appeal worthless. Common limitations that promote finality are as follows:

  • Time limits on when an appeal must be brought (on first and subsequent appeals). Exceptions to a time limit are appropriate as long as the criteria for granting an extension are expressly set out and it is clear that extensions should not be granted as a matter of course.
  • Limiting the subject matter of second and subsequent appeals to questions of law. First appeals should generally include a right of appeal on the facts. In some cases, second and subsequent appeals are limited to questions of law.  Limiting the scope of appeal to questions of law (that the decision-maker applied the law correctly) excludes examination of whether the decision erred in the conclusions as to the facts (to which they applied the law).  This makes it similar to judicial review. However, the distinction between questions of fact and questions of law can be elusive, and any limitation should be based on the purpose of the appeal, the competence of the appellate body, and the appropriate balance between finality, accurate fact-finding and correct interpretation of the law.
  • Leave (permission) requirements on subsequent appeals. A second right of appeal should generally be available only with the leave of the first or second appellate body. Typically, the criteria considered in granting leave will include either the interests of justice or the public interest in having an important question of law resolved.

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