Hearings in a court of appeal are different from a trial.
At the Federal Court of Appeal, normally three judges hear the application or the appeal, and most hearings last only a few hours.
The Federal Court of Appeal does not hear witnesses. There are no juries. New evidence (i.e. information that was not presented before an administrative tribunal or in the lower court hearing) is rarely accepted or considered by the Federal Court of Appeal. You need leave (i.e. permission) from the Court to introduce new evidence.
Before the hearing is scheduled, you will be asked your availabilities.
When your matter is ready to be heard, you will receive an Order from the Court’s Judicial Administrator confirming the place, date, time and duration of the hearing.
Hearing dates are set long in advance and are not easily rescheduled. If you are unable to attend the hearing due to unforeseen circumstances, you should contact the Registry immediately. The Registry will explain the steps and conditions under which an adjournment may be obtained. Otherwise, you are expected to be present and ready to proceed on that date.
If you require accommodation, please let the Registry know as soon as possible, once the need for accommodation becomes known.
Prepare for your hearing to the best of your ability. Familiarize yourself with the law, the rules of procedure and the legal principles that apply to your case. Read the portions of this document that address courtroom decorum and the conduct of the hearing.
Bring to the hearing a copy of all relevant documentation that has been previously filed with the Court.
Prepare and organize the information to which you intend to refer in a way that will make it easy to refer to during your presentation.
Your arguments will be more persuasive if you can point to a legal authority that agrees with your position (for example, sections of applicable laws, or court decisions on similar issues).
Going to court is a serious matter. Your clothing and appearance should reflect this. If you look like you are taking your case seriously enough to dress cleanly and neatly then that is a good start. If you can dress like you are going to a business meeting, then that is even better. If possible, avoid wearing jeans.
Arrive for your hearing at least 20 minutes prior to the time scheduled for commencement. Use any extra time to review your notes or prepare for your case.
All courthouses have commissionaires and/or security guards. Speak to them if you are not sure which courtroom you need to go to.
At the courthouse you will be asked to pass through a walk through screening device or be screened using a handheld screening wand. You will also be asked to place personal items (i.e. change, keys, laptop, coat, etc.) in a plastic bin, which will be passed through an x-ray machine). Security officers may ask to search your belongings, including briefcases, backpacks, and purses. Before arriving at the courthouse, make sure you do not have any pocket or utility knives or anything else that may be considered a weapon. These items may be confiscated, and you may be denied entry into the courthouse.
Notify the Court Registrar of your presence upon your arrival in the courtroom. Once all parties are present, the Court Registrar will “open court”, that is, announce the start of the hearing.
Three Federal Court of Appeal judges will be present. Their role is to listen to your arguments in a neutral, impartial manner. Prior to the hearing, they will have reviewed the documents that you and the other party have filed. The judges will make a decision regarding your case based on the documents filed with the Court and the arguments made during the hearing. While they may give you some guidance during the hearing, the judges cannot give you legal advice or assistance.
The Court Registrar keeps a record of events that occur during the hearing and will record the hearing with a digital audio recording system. Should you have any questions before the hearing, the Court Registrar will be able to assist you but they are not authorized to give legal advice.
The Court Usher is responsible for maintaining order in the courtroom.
The other party to your proceedings and their lawyer, if any. They will sit on the other side of the courtroom.
If someone accompanies you to the hearing, they must sit in the seating reserved for the public at the back of the courtroom.
Generally, hearings in the Federal Court of Appeal are open to the public. If the Court has ordered that proceedings be held in camera (in private), a sign to that effect will be posted on the door.
The three judges will be seated on the bench, a long elevated desk platform at the front of the courtroom. They will be facing you.
The Court Registrar’s desk is located between the bench and counsel tables. The Court Registrar will be positioned with his or her back to the judges, facing the parties (i.e. participants in the hearing).
Tables at the front of the courtroom are reserved for parties. When you are facing the judges, the tables to the left of the room are reserved for the appellant or applicant (i.e. the party who started the proceeding in the Federal Court of Appeal). The opposing party will be seated at the tables to the right of the room.
At the opening of the Court or after a recess or adjournment, the Court Usher enters the courtroom in front of the judges and will call “Order” at which point everyone in the courtroom must stand and remain standing until the judges sit down or the Court Registrar advises otherwise. When the case is over and the judges stand, or if the judges stand to take a break to leave the courtroom, then the Court Usher will ask you to stand. Remain standing until the judges have left the room.
If you are the Applicant or the Appellant (the party who started the proceeding in the Federal Court of Appeal), you will be asked to present your case first. Stand up at the lectern and introduce yourself. Always face the Court and speak loud and clear when presenting your case. The microphones in the courtroom record what you are saying.
The judges are familiar with the application or the appeal before they enter the Courtroom. They have read the summary of facts and the written arguments outlined in the factum filed by each of the parties, and they have reviewed the record of the lower Court proceedings/administrative tribunal as contained in the file.
You should not read your memorandum to the Court, but you may want to highlight matters or explain why you think that your position should prevail over the other party’s position.
Judges sometimes ask questions so that they are sure they understand what you are trying to say.
When your presentation is finished and unless the Court has any further questions, you may sit down.
The other party will make their argument.
You may take notes during the presentation of the opposing party to help you remember what they have said. The Applicant or the Appellant is permitted to give a brief reply, but only on new points raised by the other party. The Applicant or the Appellant is not permitted to restate the points already made.
The Court may take a short recess and then give its decision at the end of the hearing. When that happens, the Court will later file written reasons for its decision. However, in most cases, the Court will “reserve” its decision, meaning that the Court’s decision will be rendered later. If your case is taken under “reserve”, you will receive a copy of the decision from the Registry at a later date.
You must remove your coat and hat before entering the courtroom. Lawyers who appear before the Federal Court of Appeal wear black robes. The judges will be wearing black robes as well. If you are representing yourself in court, you will not wear robes.
Do not bring food or beverages in the courtroom (unless special permission is given because of a medical condition, for example). Do not eat or chew gum. Water is normally provided at the counsel tables in the courtroom for the people involved and their lawyers.
All electronic devices must be turned off during the hearing and cannot be used at any time during the hearing. You are not allowed to bring any kind of recording devices, unless you have asked permission and the presiding judge (i.e. the judge seated in the middle of the bench) orders otherwise.
No photographs or videos are to be taken inside the courtroom.
The judge is addressed as “Justice”, "Mr. Justice" or “Madam Justice”.
The Court Registrar is addressed as "Mr. or Ms. Registrar".
The opposing party or lawyer is addressed by their last name and title, for example, Mr. Jones, Ms. Smith.
You must stand when you speak to the judges or when they speak to you. If you do not understand what the judges have ordered or asked you, you can ask them to explain.
Do not interrupt when the judges or the other party are speaking. Only one person is allowed to speak at a time.
If you disagree with something that the other party tells the judges, write it down. At the end of the hearing, you will be provided with the opportunity to respond. You can raise the issue then.
The courtroom is a formal setting. Be respectful to the other party and others in the courtroom.
Note: The Court Usher may remove anyone from the courtroom who is aggressive toward or threatens others.